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songer_applfrom
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C
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Dorothy REED, Appellant, v. RHEEM MANUFACTURING COMPANY and Employers Mutual Liability Insurance Company of Wisconsin, Appellees.
No. 22463.
United States Court of Appeals Fifth Circuit.
July 26, 1966.
Sherman F. Raphael, New Orleans, La., for appellant.
Peter H. Beer, New Orleans, La., for appellees.
Before RIVES and THORNBERRY, Circuit Judges, and GARZA, District Judge.
RIVES, Circuit Judge:
Dorothy Reed was employed as a domestic servant in the home of Ivan M. Foley in New Orleans. Foley had installed a gas hot water heater manufactured and distributed by Rheem Manufacturing Company (hereafter Rheem). When Dorothy Reed attempted to light the hot water heater an explosion occurred and a back lash of flame severely and permanently injured her vision, face and arms. So Dorothy Reed alleged in her complaint against Rheem and its liability insurer. She predicated her complaint upon negligence and implied warranty, invoking the doctrine of res ipsa loquitur, and prayed for the recovery of damages in the amount of $30,000.00.
Rheem and its insurer moved to dismiss the complaint on the ground that Dorothy Reed had previously released any and all claims which she may have had as a result of the accident, and attached to their motion a copy of the release. The consideration for the release was $1,250.00 paid by Foley and his insurer and acknowledged by Dorothy Reed to be “in full settlement of any and all damages to the undersigned * * * arising from or out of any and all matters aforementioned.” The release also recited that Foley and his insurer in paying said sum of money did not admit any liability.
Treating the motion to dismiss as a motion for summary judgment, the district court, without disclosing its reasons, granted that motion.
On appeal, Dorothy Reed’s counsel takes the same position which he had asserted in brief before the district court, viz:
“It is the position of the plaintiff that on the basis of the pleadings and affidavits submitted there is not a scintilla of evidence that Ivan M. Foley and/or General Accident F & L Assurance Corporation, Ltd., and the defendants at the bar are joint tort-feasors, and accordingly the Court can not say, as a matter of law, that there is no material question of fact to be presented to the jury, as required under the strict dictates of Rule 56, F.R.C.P.”
We sustain that position and reverse.
Article 2203 of the Louisiana Civil Code reads as follows:
“Art. 2203. The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.
“In the latter case, he can not claim the debt without making a deduction of the part of him to whom he has made the remission.”
Applying the underlying principle of that article that there is but one debt and hence there can be but one satisfaction of it, the Louisiana courts have consistently held that a release of one joint tort-feasor with no express reservation of rights discharges all joint tortfeasors.
In Louisiana, however, it is also settled that the release of one of several alleged joint tort-feasors who is not in fact at fault does not release the others, because there can be no joint liability between them.
Apparently the burden of proof in a trial on the merits rests upon an alleged tort-feasor who claims the benefit of a release granted to another to establish that the other “was negligent and thus that he was a joint tort-feasor.” In any event, “the burden to show that there is no genuine issue of material fact rests on the party moving for summary judgment, whether he or his opponent would at trial have the burden of proof on the issue concerned.” 6 Moore F.P. 2d Ed., p. 2342. Before rendering summary judgment, the Court must be satisfied not only that there is no issue as to any material fact but also that the moving party is entitled to a judgment as a matter of law.
According to Dorothy Reed’s affidavit filed in opposition to the motion, the $1,250.00 consideration she received for the release was in no way adequate compensation for the injuries she received. Her counsel argued to the district court in brief that the inadequacy of that consideration should be compared with the allegation in the pleadings, to be taken as true for purposes of the motion, that as a result of her injuries she is entitled to recover $30,000.00 from Rheem and its insurer. As has been stated, the release itself contained an express denial of any admission of liability on the part of Foley and his insurer. All of these circumstances are consistent with Dorothy Reed’s position that there is no conclusive proof, indeed no proof whatever, that Foley is a joint tort-feasor with Rheem.
Clearly, the burden rested on Rheem and its insurer, as the parties moving for summary judgment, to prove that there is no genuine issue of fact but that Foley was at fault in injuring Dorothy Reed. Otherwise, there can be no joint liability between Foley and Rheem. Rheem and its insurer having failed to meet that burden, the judgment is reversed and the cause remanded.
Reversed and remanded.
. As permitted by Rule 12(b)(6), Fed.R.Civ.P.
. Reid v. Lowden, 1939, 192 La. 811, 189 So. 286; Guarisco v. Pennsylvania Casualty Co., 1945, 209 La. 435, 24 So.2d 678; Evans v. Walker, 1959, La.App., 111 So.2d 885; Reiley v. Atlas Construction Company, 1962, La.App., 146 So.2d 211; Harvey v. Travelers Insurance Co., 1964, La.App., 163 So.2d 915.
. Guarisco v. Pennsylvania Casualty Co., supra n. 2, at 24 So.2d 680; see also Evans v. Walker, supra n. 2, 111 So. 2d at 890; Harvey v. Travelers Insurance Co., supra n. 2, 146 So.2d at 922. See also Annotation 73 A.L.R.2d 417, 418.
. Harvey v. Travelers Insurance Co., supra n. 2, 146 So.2d at 922; see also Evans v. Walker, supra n. 2, 111 So.2d at 890.
. See also Surkin v. Charteris, 5 Cir. 1952, 197 F.2d 77, 79.
. Rule 56(c), Fed.R.Civ.P.; Palmer v. Chamberlin, 5 Cir. 1951, 191 F.2d 532, 540, 27 A.L.R.2d 416.
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_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.
UNITED STATES of America ex rel. Shahid El Hussein MUHAMMAD o/c Maynard Prater, Relator-Appellant, v. Hon. Vincent R. MANCUSI, as Warden of Attica State Prison, Attica, New York, Respondent-Appellee.
No. 809, Docket 33951.
United States Court of Appeals, Second Circuit.
Argued May 25, 1970.
Decided Oct. 22, 1970.
Edmund R. Schroeder, Morton E. Grosz, Milton Adler, New York City, for appellant.
Brenda Soloff, Asst. Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., Louis J. Lefkowitz, Atty. Gen., for appellee.
Before WATERMAN, FRIENDLY and HAYS, Circuit Judges.
PER CURIAM:
The one issue presentéd by this appeal from the denial, without a hearing, of appellant’s petition for a writ of habeas corpus in the United States District Court for the Southern District of New York, Metzner, J., is whether an examination at the FBI headquarters in New York City of a briefcase and wallet which were in defendant’s possession at the scene and time of his arrest in the public lobby of a bank was unconstitutional as an “unreasonable search.”
Following a robbery of money orders from a camera store located in the Bronx, the FBI was informed by a bank employee that appellant was in a branch office of the bank and was seeking to cash suspect money orders. Two FBI agents went to the bank forthwith and, upon ascertaining that the money orders in question were ones taken in the camera store robbery, there arrested appellant, made a limited search of his person, and took from him a briefcase he had been carrying. Appellant was taken directly to FBI headquarters where he was questioned, and his personal effects, including the briefcase, were examined. The briefcase contained 44, and his wallet 4, of the stolen money orders.
At appellant’s trial in state court for the camera store robbery, the money orders discovered by the search at FBI headquarters were, over objection, introduced into evidence as those stolen from the camera store. Appellant was convicted and sentenced to serve a term of from 15 to 30 years in prison. After appealing his conviction without success to the state appellate courts certiorari review was denied by the United States Supreme Court, Muhammad v. New York, 392 U.S. 944, 88 S.Ct. 2288, 20 L.Ed.2d 1406 (1968).
Appellant recognizes that the warrant-less search of the briefcase and the seizure of the money orders would have been proper if the search had been conducted at the time of his arrest in the lobby of the bank, but he claims, relying upon the rule in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), reaffirmed in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), that the Government was foreclosed from searching it and seizing its contents without a warrant after he and the briefcase had been removed from the scene of the arrest.
This contention is entirely frivolous. Nothing could be more consistent with a decent regard for the preservation of appellant’s right to human dignity than the act of the officers here in not publicly overhauling appellant's personal effects in the lobby of the bank. Officers may indeed promptly conduct more thorough searches of an arrested person and of the personal effects in his possession at the time of his arrest at a more convenient place than the spot of arrest. We have so held in the past subsequent to Preston, e. g., United States v. Frankenberry, 387 F.2d 337 (2 Cir. 1967); United States v. Caruso, 358 F.2d 184 (2 Cir.), cert. denied, 385 U.S. 862, 87 S.Ct. 116, 17 L.Ed.2d 88 (1966). And, in accord with an able opinion of Judge Coffin of the First Circuit, United States v. DeLeo, 422 F.2d 487, 491-493 (1 Cir.), cert. denied, 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970), demonstrating that the reasoning of the above cases, and numerous other cases like them, has not been overruled by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), we now hold here, subsequent to Chimel.
Moreover, we do not find Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) apposite. Here the challenged search is a search of a suspect’s person and of his personal effects in his immediate possession at the time of his arrest when there was probable cause to effect that arrest. The examination of appellant’s briefcase at the FBI headquarters presents no‘different constitutional issue than a search there of his suit pockets, or hatband, would present.
The order below 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_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.
Russell SCOFIELD, Lawrence Hansen, Emil Stepanec, and George Kozbiel, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 14698.
United States Court of Appeals Seventh Circuit.
March 5, 1968.
Knoch, Senior Circuit Judge, dissented.
James Urdan, John Q. Kamps, Quarles, Herriott & Clemons, Milwaukee, Wis., for petitioners.
Joseph L. Rauh, Jr., John Silard, Harriett R. Taylor, Stephen I. Schlossberg, Washington, D. C., Harold A. Katz, Irving M. Friedman, Chicago, 111., Philip L. Padden, Milwaukee, Wis., for amicus curiae.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Gary Green, Atty., N.L.R.B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Melvin J. Welles, Atty., N.L.R.B., for respondent.
Before KNOCH, Senior Circuit Judge, and SWYGERT and CUMMINGS, Circuit Judges.
CUMMINGS, Circuit Judge.
Petitioners, four employees of Wisconsin Motor Corporation (“the Company”), ask us to set aside an order of the National Labor Relations Board dismissing an unfair labor practice complaint that had issued upon their charges against their Union.
Petitioners are members of a Union that has been the bargaining representative of the production employees of the Company since 1937. The collective bargaining contract requires such employees to belong to the Union or to pay it a service fee equivalent to dues. The Company is based in West Allis, Wisconsin, where it manufactures motors. Half of its 850 production employees, including these petitioners, are compensated on a basis permitting them to earn amounts above their basic hourly wages by producing at a rate in excess of established hourly norms of output.
In 1944, the Union membership adopted a resolution providing in substance that “the men turn in [report for payment] no more than 10 cents per hour over and above the new machine rates.” In 1946, the membership approved fines as penalties for violation of that ceiling rule. The penalties are presently contained in a February 1961 Union by-law which provides that any member violating the production ceilings is “guilty of conduct unbecoming a Union member” and subject to a fine of $1.00 for each violation. The by-law also provides that in case of persistent ceiling violations, the offender would be charged with “conduct unbecoming a Union member.” If a member were found guilty of such conduct, he could be assessed with a maximum fine of $100 (enforceable within a specified time by automatic suspension or expulsion) or suspended or expelled from membership. The Union’s sanctions do not impair a member’s status as an employee of the Company.
Ceilings were established from time to time through collective bargaining between the Company and the Union although the Company did not agree to limit wages accordingly. Thus if an employee produced work in excess of the ceilings, the Company would on request pay him for his actual production without regard to the ceilings. So far the Company has been unsuccessful in its bargaining for the elimination of the Union ceiling rates, but the ceilings on all piecework jobs were increased in July of 1953 and August 1956. The ceilings in effect at the time of this dispute were between 45 and 50 cents above the machine rates.
By Union rule, any production which a production employee member has turned out at a pace which would yield hourly rates above the ceiling rates is not to be reported to the Company for immediate compensation. Instead, such members are required to “bank” with the Company their earnings in excess of ceilings. On occasions when they receive less than ceilings (for example, through absence or enforced idleness), the Union permits the members to draw upon their “bank” by charging the Company for work previously produced but not reported for wage purposes. Although the Company normally acquiesces in the “banking” system, if an employee chooses to disregard the Union rule and report all production for immediate payment, the Company, as noted, will pay him even though the Union ceilings are exceeded.
In 1946, the Union first began enforcing its “banking” system by imposing fines. In 1961, the Union found that six members had violated the “banking” system by reporting to the Company for immediate payment production at a rate in excess of the Union ceilings. Two members were fined $35 each and paid their fines. Two of the petitioner members were fined $100 each, the third was fined $75, and the fourth was fined $50. Instead of paying their fines, the four petitioners filed unfair labor practice charges with the Regional Director of the National Labor Relations Board in May 1961. In October 1961, the Union filed a suit to collect the fines in the Civil Court of Milwaukee County, Wisconsin, where it is still pending. In December 1961, the General Counsel of the Board issued a complaint charging that the Union, in fining and suing petitioners, had restrained and coerced them in the exercise of their rights under Section 7 of the National Labor Relations Act and thereby violated Section 8(b) (1) (A) of the Act. The Union and Company have taken no measures to impair the job status of the petitioners.
The Trial Examiner and the Board concluded that Section 8(b) (1) (A) had not been violated and dismissed the complaint. In view of the authoritative construction of that Section in National Labor Relations Board v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123, we must deny the employees’ petition for review.
As early as 1951, this Court construed the proviso in Section 8(b) (1) (A) in American Newspaper Publishers Association v. National Labor Relations Board, 193 F.2d 782 (7th Cir. 1951), affirmed on other grounds, 345 U.S. 100, 73 S.Ct. 552. There the union threatened to expel members for violation of a rule forbidding them to work in a shop with non-members. Even though the expulsion might involve the loss by the employee of his job and other economic benefits such as pension and mortuary provisions, we held (at pp. 800-801, 806):
“Under this limitation [proviso] Congress left labor organizations free to adopt any rules they desired governing membership in their organizations. Members could be expelled for any reason and in any manner prescribed by the organization’s rules, so far as § 8(b) (1) (A) is concerned. This interpretation has support in the legislative history of the Act. It is also significant that while the Board has been so interpreting this section of the Act during the past four years, Congress has not amended the section to indicate that a broader interpretation of the section was intended or desired. It is not within the power of the courts to write into this section of the Act, by interpretation, language which would broaden its scope. ******
«* * * proviso in § 8(b) (1) (A) permits unions to enforce their internal policies upon their membership as they see fit.”
In National Labor Relations Board v. Amalgamated Local 286, 222 F.2d 95 (7th Cir. 1955), the union threatened to deprive certain members of group and hospitalization insurance coverage because they had refused to pay various disciplinary assessments and fines which the Union had imposed upon them. Following the lead of American Newspaper Publishers Association, the Court held that under the proviso in Section 8(b) (1) (A) the union’s threatened withdrawal of the insurance rights of the complaining employees as a disciplinary measure was in full conformity with its right to regulate its internal affairs.
Thus in this Circuit, even before the decision in National Labor Relations Board v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123, great breadth was accorded to the proviso in Section 8(b) (1) (A). In Allis-Chalmers, the opinion of the Court holds that the words “restrain or coerce” used in Section 8(b) (1), as shown by the legislative history of the Section, were not meant to encompass internal affairs of unions. In other words, internal union disciplines are not among the proscribed restraints. In reaching this conclusion, the Court was partly motivated by our national labor policy that clothes a union with powers analogous to a legislature, with union rules enacted by the majority becoming binding on the minority. The Court noted that in the case of a strong union, expulsion from membership is a far more severe penalty than a reasonable fine (at p. 183, 87 S.Ct. 2001). The Court’s examination of the legislative history of Section 8(b) (1) (A) convinced it that the statute does not prohibit union imposition of disciplinary fines and suits to collect them. In reaching its conclusion that the body of Section 8(b) (1) (A) was inapplicable to fines and collection suits aimed at union members crossing picket lines and working during lawful strikes, the Court found cogent support in the proviso to Section 8(b) (1), stating (at pp. 191-192, 87 5. Ct. at p. 2012):
“At the very least it can be said that the proviso preserves the rights of unions to impose fines, as a lesser penalty than expulsion, and to impose fines which carry the explicit or implicit threat of expulsion for nonpayment. Therefore, under the proviso the rule in the UAW constitution governing fines is valid and the fines themselves and expulsion for nonpayment would not be an unfair labor practice.”
The Court found it unnecessary to decide whether Section 8(b) (1) (A) “proscribes arbitrary imposition of fines, or punishment for disobedience of a fiat of a union leader” (at p. 195, 87 S.Ct. at p. 2014).
In his concurring opinion, Mr. Justice White relied more on the proviso to Section 8(b) (1) (A) than on legislative history showing the inapplicability of the “restrain or coerce” language of the body of the Section. In joining in the opinion of the Court, he noted that there might be some internal union rules “which on their face are wholly invalid and unenforceable” (at p. 198, 87 S.Ct. at p. 2016).
Union opposition to piecework has a history in the labor union movement dating at least back to 1908. Fines and expulsion of members for violating the present and antecedent ceilings have been the rule for 22 years. We are told that the work of a majority of these employees would be jeopardized by younger, more energetic employees, and that the rule is therefore intended to protect the well-being of all members, for if the younger employees received higher pay by increased production, the older members, unable to turn out similar piecework quantities, would be demoralized and even face lay-offs. As the Trial Examiner pointed out, ceiling rules derive from a legitimate, traditional interest in union objectives. They reflect fears of (1) employees working themselves out of jobs by overproduction; (2) the establishment of a new productive norm lowering the piecework rate and the compensation for actual production; (3) morale-threatening jealousies and (4) health problems caused by too much pressure. These factors were covered in some detail in the excerpts from various labor authorities appended to his report (145 NLRB at pp. 1138-1141). One such authority explained the purpose of ceiling limits as follows:
“At their inception the purpose of limits applying to pieceworkers is not primarily to make work but partly to protect the union from being weakened by jealousies and dissensions arising from the fact that some workers receive better jobs than others, partly to prevent foremen from playing favorites in assigning jobs, and partly to prevent employers from cutting liberal piece rates or from using the high earnings of some workers as an argument against a general increase in piece rates. Such limits have in the past been common among the glass bottle blowers, the flint glass workers, the potters, the stove molders, and in 1940 are being imposed by the leather workers in Massachusetts.”
Thus the rule has a rational basis, and we cannot say that it was not reasonably calculated to achieve a permissible end. Accepting the Allis-Chalmers stricture that in considering questions of union discipline a union is comparable to a legislature, our function is to determine whether these fines conform to policies formulated by the Union and not viola-tive of its constitution or of federal law. Since the end here was a legitimate union objective and the means were appropriate to enforce it, our hand should' be stayed. McCulloch v. State of Maryland, 17 U.S. (4 Wheat.) 316, 420, 4 L.Ed.2d 579. Enough has been said to show that the Union’s imposition of these fines was not arbitrary and that the rules themselves are grounded on a long-standing policy and cannot be deemed invalid or unenforceable on their face.
Petitioners argue that the present rule circumvents the bargaining process, and that the Union should have to obtain a provision against incentive pay through collective bargaining with the Company. Since petitioners concede that the Union can validly impose ceilings through collective bargaining, it is no great departure to allow them to be imposed by a disciplinary rule enforcing ceilings already established by collective bargaining. If a union has validly established a policy against overproduction, it must have the concomitant power to discipline members who violate ceilings. Cf. Summers, “Legal Limitations on Union Discipline,” 64 Harv.L.Rev. 1049 (1951). Discipline has been described by the same author as the criminal law of union government. “The Law of Union Discipline: What the Courts Do in Fact,” 70 Yale L. J. 175, 178 (1960).
As the intervenor pointed out, the rule enforced in Allis-Chalmers was of more serious economic consequence to the employees, for they were not permitted to work during that strike and their jobs might be forfeited. Here the employees were permitted to work even in excess of ceilings, with the additional earnings deferred under the Union’s “banking” system. Their job rights were unaffected by the rule. Petitioners assert that “banking” involves a very small amount of the Company’s production and does not overcome the Union’s limitation on production, but under Section 8(b) (1) (A) of the Act, as interpreted in Allis- Chalmers, the Union rule would survive even if there were no provision to “bank” excess earnings.
Petitioners depend principally on Allen Bradley Company v. National Labor Relations Board, 286 F.2d 442 (7th Cir. 1961). There the question was whether the union was obliged to bargain in good faith over a collective bargaining contract provision proposed by the employer limiting the union’s right to discipline or fine its members. The holding was that the proposals made by the company were a proper subject for collective bargaining. The question for resolution by this Court was not whether union discipline of members violates Section 8(b) (1) (A). Furthermore, in that case, Judge Major stated (at p. 446):
“Coercive action, whether by way of fine, discharge or otherwise, which deprives a member of his right to work and his employer of the benefit of his services, cannot be said to relate only to the internal affairs of the union.”
In the present case, no member has been deprived of his right to work nor has the employer been deprived of the benefit of a member’s services. To the extent that a dictum in Allen Bradley disapproves union fines and collection suits aimed at members crossing the union’s picket line and continuing to work for their employer, that dictum was flatly rejected in Allis-Chalmers and is no longer viable. But as Allen Bradley still holds, the Wisconsin Motor Corporation can require the Union to bargain over a demand to give up its ceiling rule.
Petitioners rely on Printz Leather Co., Inc., 94 NLRB 1312 (1951), where the union threatened to strike if the employer did not discharge an employee who the union felt was working too fast. Printz is inapplicable because there the union’s objective (unilateral imposition of production ceilings) and methods (threats to force the employer to discharge the employee) were manifestly improper. Associated Home Builders of Greater East Bay, Inc. v. National Labor Relations Board, 352 F.2d 745, 751-752 (9th Cir. 1965); National Labor Relations Board v. Brotherhood of Painters, 242 F.2d 477, 480-481 (10th Cir. 1957). They also rely on Charles S. Skura, 148 NLRB 679, 683 (1964), which held that the union violated Section 8(b) (1) (A) by fining an employee-member for filing an unfair labor practice charge against the union without first exhausting internal union remedies. The Board held that the union’s objective was at odds with policy considerations because “ ‘no private organization should be permitted to restrict any person’s access to courts of justice’ ”. No policy considerations of comparable strength militate against the Union rule here at issue.
The petition for review is denied.
. Local 283, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO. The parent Union is an intervenor.
. Section 7 grants employees the right to refrain from concerted activities. It provides in pertinent part (29 U.S.C. § 157):
“Employees shall have the right to * * * engage in * * * concerted activities * * *, and shall also have the right to refrain from any or all of such activities * *
. Section 8(b) (1) (A) provides in pertinent part (29 U.S.C. § 158(b) (1) (A)):
“ (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: 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 * *
. See also Cox, “The Role of Law in Preserving Union Democracy,” 72 Harv.L.Rev. 609, 612, 622-623 (1959).
. It should be noted that the amounts of the instant fines are reasonable, so that there is no need to read Section 8 (b) (1) as barring court enforcement of them. We need not consider whether excessive fines would be proscribed by that Section.
. See Slichter, Union Policies and Industrial Management (1941), pp. 285-286.
. Slichter, op. cit., pp. 166-167; see also pp. 296-305.
. Summers, “Legal Limitations on Union Discipline,” 64 Harv.L.Rev. 1049, 1073-1074 (1951).
. This question is now awaiting argument in the Supreme Court in Industrial Union v. National Labor Relations Board, No. 796, present Term. No view is expressed herein as to the correctness of the Skura rule.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
|
songer_appbus
|
2
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "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.
BEWAL, INC., a corporation of Kansas; and Benjamine C. Edwards, Jr., Appellants, v. MINNESOTA MINING AND MANUFACTURING COMPANY, a corporation of Delaware, Appellee.
No. 6445.
United States Court of Appeals Tenth Circuit.
June 7, 1961.
Rehearing Denied July 26, 1961.
Wayne Coulson, Wichita, Kan. (Lloyd F. Cooper, John H. Widdowson, and Richard A. Loyd, Wichita, Kan., on the brief), for appellants.
Edward A. Haight, Chicago, 111. {George B. Powers and Malcolm Miller, Wichita, Kan., and Harold J. Kinney and Stanley G. DeLaHunt, St. Paul, Minn., on the brief), for appellee.
Before PICKETT, LEWIS and BREI-TENSTEIN, Circuit Judges.
PICKETT, Circuit Judge.
Minnesota Mining and Manufacturing Company, a Delaware corporation, brought this action alleging that its patent No. 2,714,066 had been infringed by the defendants, Bewal, Inc., which was sales agent for Polychrome Corporation, the manufacturer of the accused product, and Benjamine C. Edwards, Jr., who was president of Bewal, Inc. The defense included a denial of both the validity of the patent and the infringement. The trial court found that the patent is valid and had been infringed. The defendants were enjoined from further infringement, and the matter was referred to a master for a determination of damages.
The patent relates to a presensitized lithographic plate used in printing. Lithography is a process of printing from a plane surface without raised type or engraved images. To accomplish the desired results, the plates are required to have a printing image which repels water and retains greasy ink, and a non-image surface which retains water. The process employs the principle that oil and water do not mix. The effective use of the plate depends upon its ability to attract ink only on the image area. Customarily, the plate is mounted on a cylinder in a press, and, as it revolves, the plate is dampened with water, and the image area is supplied with the required ink, which is repelled by the damp, non-image surface. The plate is then pressed against the rubber surface of an offset cylinder which removes the ink and transfers it to the paper.
The patent in suit describes the invention as being:
“especially concerned with a plate formed from a thin metal sheet having at least one surface thereof treated to provide a tightly bonded, thin, preferably inorganic, hydrophilic surface treatment, formed from a solution of an alkali metal silicate, silicic acid, or other treating agent which will form a permanently hydrophilic scum-preventing and tone-reducing film overlying and in firmly-bonded contact with the surface of the plate, and having a coating of light-sensitive organic material such as a light-sensitive diazo resin or other light-sensitive organic nitrogen-containing material over the exposed hydrophilic treated surface, i. e., over the exposed surface of the scum-preventing and tone-reducing film or treatment. The light-sensitive material is preferably a water-soluble, rapidly light-insolubized organic compound, especially a diazo type of light-sensitive material, as more fully described below.”
The principal purpose of the invention is to provide presensitized planographic plates with dimensional stability which are ready for exposure through a negative or stencil, without further treatment, even after storage for a substantial length of time. Jewett and Case sought to create a plate free of the disadvantages of those generally in use, particularly the necessity of exposure and development immediately after the application of the sensitizer. They discovered that when a diazo resin was used as a sensitizer on a sheet of aluminum the metal and diazo reacted with each other, causing a rapid deterioration. They found the answer to this by-treating a clean, smooth aluminum sheet with a solution of aqueous sodium silicate which provided a water-retaining surface, or thin film, on the aluminum sheet, and shielded the layer of diazo light-sensitive material from the aluminum. This treatment eliminated the deteriorating effect of reaction with the aluminum during storage. The key to the success of the process was in the protective film on the metal sheet resulting from the silicate treatment. The discovery of the patentees was not the recognition that such film was desirable, but what film would do the job. Application of Jewett [& Case] 247 F.2d 953, 45 CCPA 714. These plates could be prepared for the press by a lithographer in far less time than the old ones, and less training was required for those using them. A better quality of printing resulted from the smooth plate. The plates were unique in the industry, and had immediate commercial success.
The defendants agree that there was no presensitized lithographic plate in the prior art which anticipated the one described in the plaintiff’s patent, but urge that every process used therein was well-known, and that the process described by the patent was only an aggregation of the known processes which were obvious to a person having ordinary skill in the art. The trial court, as did the Patent Office, considered the principal patents and the literature relied upon by the defendants, and found that none of the prior art had anticipated the invention of the patent in suit, and that the Patent Office had overlooked no material matter in the prior art and publications. It is quite clear from the evidence that the printing industry had for many years sought a presensitized lithographic plate which would retain stable dimensions, provide a good press life, and could be stored without deterioration, and that these requirements were first met by the Jewett and Case plate.
A duly issued patent is presumed to be valid, and the burden of establishing invalidity rests on the party asserting it. 35 U.S.C.A. § 282. The presumption, which includes the implication that the patent was not anticipated by prior knowledge and use, may be overcome only by clear and convincing evidence. Jamco, Inc. v. Carlson, 10 Cir., 274 F.2d 338; Consolidated Electrodynamics Corp. v. Midwestern Instruments, Inc., 10 Cir., 260 F.2d 811; Oliver United Filters, Inc. v. Silver, 10 Cir., 206 F.2d 658, certiorari denied 346 U.S. 923, 74 S.Ct. 308, 98 L.Ed. 416; Insul-Wool Insulation Corp. v. Home Insulation, Inc., 10 Cir., 176 F.2d 502. The presumption of validity is strengthened in cases in which the developments relied upon to show invalidity because of anticipation were before the Patent Office. Saul v. International Harvester Co., 7 Cir., 276 F.2d 361; Cold Metal Process Co. v. Republic Steel Corp., 6 Cir., 233 F.2d 828, certiorari denied 352 U.S. 891, 77 S.Ct. 128, 1 L.Ed.2d 86.
When old elements are united in such a manner that the union accomplishes either a new result or an old result in a more facile, economical and efficient way in a particular environment which presented peculiar and difficult problems, it is a true combination and patentable. Consolidated Electrodynamics Corp. v. Midwestern Instruments, Inc., supra, 260 F.2d at page 816; Oliver United Filters, Inc. v. Silver, supra. Cf. Hutchinson Mfg. Co. v. Mayrath, 10 Cir., 192 F.2d 110, certiorari denied 343 U.S. 914, 72 S.Ct. 647, 96 L.Ed. 1329. In Oliver United Filters, Inc. v. Silver, supra, a patent was issued on a combination of parts and developments, all well known to the industry, but the result was one which the manufacturers of beet sugar had unsuccessfully sought for many years. The defense of invalidity was similar to that presented in the instant case. In discussing the applicable law, we said, 206 F.2d at page 662:
“Silver does not contend that he originated any one of the elemental parts or steps of his inventions. He urges, and the patent office agreed, that he was the first to conceive of the use of the combination which is employed in his apparatus and process, and that his invention is in the combination and not in the elements. He readily concedes that all the elements of his combination were known to the art long prior to his inventions but contends that his combination is new. The law is that a combination of old elements is patentable if it accomplishes either a new or an old result, ‘in a more facile, economical, and efficient way in a particular environment which presented peculiar and difficult problems.’ Harris v. National Machine Works, Inc., 10 Cir., 171 F.2d 85, 88, certiorari denied 336 U.S. 905, 69 S.Ct. 491, 93 L.Ed. 1070; Expanded Metal Co. v. Bradford, 214 U.S. 366, 381, 29 S.Ct. 652, 53 L.Ed. 1034; Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U.S. 325, 332, 29 S. Ct. 503, 53 L.Ed. 816; Williams v. Hughes Tool Co., 10 Cir., 186 F.2d 278, 281, certiorari denied 341 U.S. 903, 71 S.Ct. 612, 95 L.Ed. 1342; Haynes Stellite Co. v. Osage Metal Co., Inc., 10 Cir., 110 F.2d 11, 15; Williams Iron Works Co. v. Hughes Tool Co., 10 Cir., 109 F.2d 500, 506, 512. In Great A. & P. Tea Co. v. Supermarket Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 130, 95 L.Ed. 162, it was said that, ‘The function of a patent is to add to the sum of useful knowledge’, and that to constitute invention, ‘The conjunction or concert of known elements must contribute something; only when the whole in some way exceeds e sum of its parts is the accumulation of old devices patentable.’ * But see, 1 Deller, Walker on Patents (Deller’s Ed., Supp.1960.)
While it is true that Jewett and Case brought together known processes which, viewed in retrospect, appeared to be very simple, yet the methods attempted in the prior art did not lead to a metal presensitized plate even though a need and a ready market therefor had long existed. It was not until after the plaintiff’s plate had been marketed that the invention became obvious even to the leaders in the industry who had attempted to find an answer to the demands. “The fact that others skilled in the art in quest for a solution of the problem failed and that [patentee] first conceived the combination of elements, arrangements and mode of operation embodied in the patent in suit is persuasive evidence that he exercised inventive genuis and not mere mechanical skill.” Steiner Sales Co. v. Schwartz Sales Co., 10 Cir., 98 F.2d 999, 1003, certiorari denied 305 U.S. 662, 59 S.Ct. 364, 83 L.Ed. 430; Accord, Stearns-Roger Mfg. Co. v. Ruth, 10 Cir., 62 F.2d 442.
The evidence is without substantial conflict that plaintiff’s invention, as set forth in the claims of the patent, accomplished a new and improved result in a more facile, economical and efficient manner, and solved a peculiar and difficult problem in a particular environment. It made an important contribution to the sum of useful knowledge concerning lithographic plates which was definite and novel, and was not such that at the time it would have been obvious to a person having ordinary skill in the art of lithography.
The trial court found that each of the claims of the patent in suit was infringed by the accused “dualkote” and “alkote” presensitized plates manufactured by Polychrome Corporation and sold by the defendants. The patent claims refer to a film formed on the surface of an aluminum sheet through the reaction of an aqueous solution of soluble silicate which is “substantially free from water-soluble material.” Defendants urge that the Polychrome plate is distinguishable from that of the plaintiffs in that, after the silicate treatment, the surface of the aluminum sheet is not substantially free from water-soluble material. Although there is evidence to the effect that the accused plate, before the application of the light-sensitive diazo resin, is not free from water-soluble material, the difference in the amount of such material on the two plates is so insignificant that it cannot be considered as being without the teaching of the patent. The defendants cannot avoid the provisions of the patent by adding water-soluble materials unless, of course, the added materials create a result wholly different from those of the patent.
The evidence is without con flict that plaintiff’s plate and the ac cused plate are almost indistinguish able.
The court found:
“They employ substantially the same means, are used in substantially the same manner, and produce substantially identical results. Their surface is smooth, as defined in the patent, and very different from the surface of the various prior art mechanically grained and deeply etched plates. The silicate surface of the accused plates is substantially free of water soluble materials, within the meaning of the patent and the claims thereof.”
Colorable differences without substance do not avoid infringement. Southwestern Tool Co. v. Hughes Tool Co., 10 Cir., 98 F.2d 42; Skinner Bros. Belting Co. v. Oil Well Improvements Co., 10 Cir., 54 F.2d 896. The test of infringement is “whether the two devices do the same work in substantially the same way to accomplish substantially the same result.” Williams Iron Works Co. v. Hughes Tool Co., 10 Cir., 109 F.2d 500, 503. Accord, Jamco, Inc. v. Carlson, supra; Oliver United Filters, Inc. v. Silver, supra. All the witnesses agree that the accused plates do the same work as plaintiff’s plates, and accomplish almost exactly the same result. The infringement is clear.
The defendant Edwards was a majority stockholder, president, and general manager of the defendant Bewal, Inc., which was incorporated in 1952 to perform a contract with plaintiff for the distribution of its plates in a specific area. While Bewal, Inc. was still employed as the distributor for plaintiff’s product, he arranged with Polychrome to sell its presensitized plates as an exclusive dealer in the same territory. With the cooperation of Polychrome, he sought to direct customers and users of plaintiff’s plates to those of Polychrome. During this time he wrote to Polychrome stating, “Minnesota Mining is having a ‘fit’ ”, and “so far, we are making monkeys of them. * * #» “Whoever actively induces infringement of a patent shall be liable as an infringer.” 35 U.S.C.A. § 271(b). Corporate officers are not liable for patent infringement where they have not been active other than as such officers, but if they wilfully and knowingly participate in, induce and approve acts of infringement, they are liable with the corporation for the wrongful acts. Southwestern Tool Co. v. Hughes Tool Co., supra; 3 Deller, Walker on Patents § 442 (Deller’s Ed., 1937). The finding that Edwards, by his conduct, “aided, participated in, approved, ratified and induced the sale and distribution by Bewal of the Polychrome presensitized metal lithographic plates” is not clearly erroneous.
Finally it is contended that there was fraudulent conduct in the prosecution of the application in the Patent Office and that plaintiff’s conduct during the trial of this ease was such that equitable relief should be denied. It is urged that the information leading to the patent process was furnished to the patentees by third parties, Lithoplate, Inc., and Elmer Deal, its president. The argument is that plaintiff received from Lithoplate, Inc. each element needed to complete the plate finally described in the patent; that it was Jewett’s purpose to copy Lithoplate, Inc.’s combination and substitute some other intermediate protective layer for the recommended cellulose acetate; and that all that was necessary for this change was to turn to the prior art to find that sodium silicate, which had been suggested by Deal in a meeting at St. Paul, Minnesota, would serve the purpose. In unrestrained language, defendants refer to some of the representations made in the Patent Office as “bare face falsehoods” ; they state that plaintiffs “stole” the formula from Lithoplate; and refer to “Jewett’s perjury” in efforts to conceal the source of his knowledge.
The trial court found, “Jewett and Case are the first, original and joint inventors of the invention defined in the claims of the patent in suit. They did not derive the invention from either Lithoplate, Inc., Deal, Richlin, or anyone else.” This finding is sustained by the evidence. Lithoplate, Inc. was engaged in the manufacture of lithographic plates and was desirous of developing a marketable presensitized plate. There were negotiations and discussions between plaintiff and Deal, representing Lithoplate, together with its chief technical advisor Richlin, from November of 1949 to March or early April of 1950. These discussions, along with some experiments, were primarily directed toward the development of a plate with a cellulose acetate film, laminated to metal, having an exposed surface of the acetate hydrolized, and coated with a diazo light-sensitive resin. It was thought that the film of cellulose acetate might be successful on an etched metal plate. The possibility of sensitizing the surface of a plastic film, and then laminating it to a metal or paper backing was also discussed. These discussions and negotiations bore no fruit and were terminated by a letter from the vice-president of plaintiff on April 10, 1950. The ideas considered by the parties were old, and Lithoplate did not claim to be the inventor of any of them. A disclosure to the Patent Office of these negotiations would have added little, if anything, to the material which it had. The patent refers to prior use of a cellulose acetate layer on the metal to protect the sensitizer.
The plaintiff was convinced that a formula or treatment of metal could be found which would protect the light-sensitive diazo compound from the deteriorating effect of the metal. It therefore decided to continue the study. Within a short time thereafter, Jewett and Case, while making routine experiments, found that treatment of a clean aluminum sheet in a solution of sodium silicate brought about the desired result. The plates suggested by Lithoplate were never manufactured or sold by the plaintiff. Lithoplate, Inc. continued its efforts, and during the year 1950, manufactured and sold a laminated cellulose acetate lithographic plate which proved to be unsuccessful and was discontinued in 1952. It then began to make and market a silicate treated presensitized aluminum plate. Deal testified that during the period of his discussions, experiments and negotiations with plaintiff, he disclosed, at a meeting in St. Paul, Minnesota, that the treatment of an aluminum sheet with a silicate solution might be the answer to the problem. There is no documentary corroboration of this disclosure. The memorandum of the meeting where the information was said to have been given does not mention it. The testimony is contradicted by several witnesses whom the trial court saw fit to believe. Furthermore, the so-called “steal from Deal” is an issue which cannot be determined in this action. The file history of the Jewett and Case patent contains this statement:
“However, insofar as we are aware, no one has ever previously produced any commercially acceptable presensitized metal-backed planographic plate; and no one has ever previously produced any presensitized planographic plate of any construction which will compete with grained zinc plates of the prior art, as above described, where long press life and quality reproductions are important. Our plate, on the other hand, is a presensitized metal plate, and yet will produce work with a sharpness of dots and lines, and other details, considerably beyond what can be produced with the conventional commercial albumin-coated grained zinc plates of the prior art.
“Light-sensitive diazo resins and other like light-sensitive organic materials are notably sensitive to metals. For example, Kalle British Patent No. 699,413, published November 4,1953, at page 1, points out that if water-soluble diazo compounds, or like light-sensitive substances, are coated on metal supports, a plate which can be stored in the unexposed state, i. e. a presensitized plate, cannot be made, ‘owing to the decomposition of the light-sensitive substance caused by the metal.’ Others concerned with metal plates have coated them with a substantial layer of cellulose acetate, or other material, and then hydrolyzed the surface of the acetate and coated the diazo resin or equivalent thereover. No one, insofar as we are aware, ever visualized that aluminum or other metal plates could be used to receive a coating of a light-sensitive diazo resin, or the like, by the simple expedient of first briefly treating the metal surface with an aqueous alkali metal silicate, silicic acid, or equivalent, which will give the metal a permanently hydrophilic surface, e. g. a scum-preventing surface film, and will not measurably increase the thickness of the metal plate. Furthermore, a plate made as just indicated has outstanding quality and performance characteristics, not possessed by any prior plate, and this was also entirely unappreciated heretofore, to the best of our knowledge and belief.
******
“Insofar as we are aware, prior to our invention there had never been a satisfactory presensitized metal lithograph plate; nor had there been any presensitized metal lithographic plate on the market.”
It was also represented to the Patent Office that the applicants had accomplished a result which “neither Kalle & Co. nor anyone else had been able to accomplish, and applicants thereby created a new era in the lithographic printing field.”
The trial court, in minute detail, found these statements to be true, and the findings do not appear to be clearly erroneous. They are, we think, sustained by the evidence.
We find no conduct on the part of the plaintiff, its employees, or its attorneys, during the pretrial proceedings, or in the trial of the case, which would deprive the plaintiff of the relief sought or warrant a reversal.
Affirmed.
. This patent was issued by the Commissioner of Patents on July 26, 1955 to Clifford L. Jewett and John M. Case, employees of the plaintiff, which is now the exclusive owner thereof. The patent is based upon the original application filed December 6, 1950.
. The Court’s Findings of Fact and Conclusions of Law are found in Minnesota Mining & Mfg. Co. v. Bewal, Inc., D.C. Kan., 183 F.Supp. 794, 795.
. The patent refers to the lithographic plate art as it existed at the time of this invention as follows:
“Prior to the present invention the lithographic plates employed in commerce and industry have consisted mainly of grained zinc plates, commonly produced by people who are in the business of graining plates. These grained plates are customarily supplied to a large number of shops throughout the country that make finished plates for the printer and lithographer. These shops coat the grained zinc plates with a suitable composition, normally colloidal and most usually an albumin, ammonium bichromate solution and then, following drying, promptly expose the sensitized plate, through a suitable stencil or negative, to secure the desired image, then apply a developing ink (by swabbing) to the entire surface of the plate, then wash the entire plate with water to wash off the unexposed colloidal and water-soluble materials and developing ink adhering thereto (which develops the image, whereupon the plate maker can see whether he has a good plate and the light-reacted albumin-bichromate layer is thus protected from water, so that it remains ink-receptive), then they apply a gum arabio solution to the printing surface of the plate, and then supply the finished plate to the printer or lithographer, for use on his presses.”
. The following is typical of much of the testimony on the subject:
Michael H. Bruno, Research Director of the Lithographic Technical Foundation, testified: “ * * * Lithographic Technical Foundation is responsible for a good many developments in lithography, but I consider the 3-M plate as one of the most significant advancements in lithography in the last twenty years.”
Ralph B. Mason, a research chemist at the Aluminum Research Laboratory of the Aluminum Company of America, the named inventor in a patent referred to in Patent No. 2,714,066, stated: “Affiant believes that the development of a presensitized plioto-oifset plate, or presensitized printing plate, on a metal base, represented a truly significant step forward in the printing plate art and, practically and commercially, represented a new use of aluminum.”
“Commercial success in itself is not sufficient to sustain a patent but it is evidence of its validity and in doubtful eases may be the deciding factor. * Oliver United Filters v. Silver, 10 Cir., 206 F.2d 658, 663, certiorari denied 346 U.S. 923, 74 S.Ct. 308, 98 L.Ed. 416. See 1 Deller, Walker on Patents § 44. (Deller’s Ed. 1957.)
. In Dow Chem. Co. v. Halliburton Oil Well Cementing Co., 324 U.S. 320, 330, 65 S.Ct. 647, 651, 89 L.Ed. 973, the Court said: “It is elemental that the mere substitution of equivalents which do substantially the same thing in the same way, even though better results may be produced, is not such an invention as will sustain a patent.” Accord, Consolidated Electrodynamics Corp. v. Midwestern Instruments, Inc., 10 Cir., 260 F.2d 811.
. In its findings, the court referred to the patents and publications relied on by defendants at the trial as follows:
“Although defendants originally relied upon more than thirty prior art patents and publications, at the pretrial on January 30, 1960, defendants restricted the prior patents and publications, to be relied upon by them at the trial, to the following :
U. S. “ “ 1,946,153 Edwards Feb. 6, 1934
U. S. “ “ 2,225,736 Champion Dec. 24, 1940
U. S. “ “ 2,507,314 Mason May 9, 1950
French patent No. 904,255 Kalle & Co. Feb. 19, 1945
German “ 464,051 Tutzschke Aug. 4, 1928
Canadian “ 427,626 Mason May 22, 1945
British “ 407,830 Siemens Mar. 29, 1933
British “ 433,538 Siemens Aug. 12, 1935
Report 4116, Dept, of Commerce, CIO, Report No. C-4, published July 7, 1945, entitled ‘Report on Diazo Processes Developed by Kalle and Co., A.G.J. I.O.A.’ Final Report No. 13, report prepared by J.I.O.A., Washington, D. C. Report No. C-l published June 17,1945.
“ ‘Mitteilungen des Forschungsinstituts und Profieramts fur Edelmetalle an der staatliehen Hohern Fachsehule Schwabisch Gmund 12, 1-9, 17-29 (1938).’
“Clerc publication cited by the U. S. Patent Office in file wrappers of the Jewett and Case patent.
“ ‘Lithography as Found in Germany’, article in December 1946 issue of Modern Lithography.
“Ad by Kalle & Co. in ‘Der Polygraf’, May 20, 1948 issue, page 59.
“The defendants, at the trial, placed primary reliance upon the Kalle French patent No. 904,255, the Mason Canadian patent No. 427,626, and certain other United States and foreign patents.” [183 F.Supp. 797.]
. The court also found:
“Jewett and Case were the first to produce a commercially acceptable presensitized metal lithographic plate. The materials used in its manufacture were all old. The diazo light-sensitive resin had been known for upwards of 15 years before the Jewett and Case invention. Sheets of aluminum and solutions of alkali metal silicate were much older. All were available to anyone who might have conceived of the presensitized metal lithographic plate defined in the claims of the patent in suit. No one had combined them to produce a successful plate until Jewett and Case did so; and no one had produced and offered commercially a presensitized metal plate, by any means or method, prior to the presensitized metal plate of plaintiff, made according to the Jewett and Case invention, and first sold in August, 1950.”
. In discussing the validity of a combination patent, we think the statement in Reiner v. I. Leon Co., 2 Cir., 285 F.2d 501, 503-504, is appropriate:
“The test laid down is indeed misty enough. It directs us to surmise what was the range of ingenuity of a person ‘having ordinary skill’ in an ‘art’ with which we are totally unfamiliar; and we do not see how such a standard can be applied at all except by recourse to the earlier work in the art, and to the general history of the means available at the time. To judge on our own that this or that new assemblage of old factors was, or was not, ‘obvious’ is to substitute our ignorance for the acquaintance with the subject of those who were familiar with it. There are indeed some sign posts: e. g. how long did the need exist ; how many tried to find the way; how long did the surrounding and accessory arts disclose the means; how immediately was the invention recognized as an answer by those who used the new variant? In the case at bar the answers to these questions all favor the conclusion that it demanded more intuition than was possible by tke ‘ordinary’ workers in the field. The needs were known, but the purpose to fulfil them with that minimum of material and labor disclosed in the patent had not appeared; and economy of production is as valid a basis for invention as foresight in the disclosure of new means. In the case at bar the saving of material as compared to anything that had preceded, was very great indeed; the existing devices at once yielded to Reiner’s disclosure; his was an answer to the ‘long-felt want.’ ”
. David N. Kendall, a consulting chemist, a witness for the defendants, concerning the amount of water-soluble material found on the accused plate, testified:
“Q. You said you found 3 per cent citric acid in the water from the accused plate? A. In the 3 per cent, about 3 per cent in the Polychrome plate, yes.
“Q. Now that is 3 per cent of what? A. Three per cent by weight of the total solids extracted by water from the plates.
“Q. And what was the total? A. What was the total what?
“Q. Solids extracted by water from the plate. A. Oh, it was in the neighborhood of about 10 milligrams I would say, sir.
“Q. Now what is 10 milligrams. Is that a drop, or how can we visualize the size of that? A. Well, it might be, it is something depending on the particular housewife, it might be something like what the housewife would take as a ‘pinch’ of material, a pinch of salt or something like that.
“Q. A little bit of a pinch, and you say there was 3 per cent of a pinch of citric acid? A. I said there was 3 per cent of the total weight of sample there which is about 10 milligrams. I was just trying to visualize for you what a pinch might be. Excuse me, what 10 milligrams might be.
“Q. Well now, that 3 per cent citric acid is going to be something less than about a millionth of an ounce, isn’t it? A. It will be about.3 milligrams, sir.
“Q. And expressing that in. grams, what would that be in grams? A. It would be approximately.07 grams, sir.
“Q..07 grams? A. Well, rounding it off, it is nearest.01 grams. Actually it is.00 with a third decimal being graded in five, sir, around seven, it would be approximately.01.
“Q. How much solids did you find in distilled water? A. There was — I don’t think I actually weighed them. It was a very small amount. I would imagine about, oh, I would guess about.5 of a gram, something like that. * * * ”
. In Graver Tank & Mfg. Co. v. Linde Air Prod. Co., 339 U.S. 605, 607, 70 S.Ct. 854, 856, 94 L.Ed. 1097, the Court said:
. The defendant Edwards testified:
“Q
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
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songer_adminrev
|
J
|
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".
Marvin ECHOLS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 75-1875.
United States Court of Appeals, Sixth Circuit.
Nov. 6, 1975.
Marvin Echols, pro se.
Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., Bernard Gottfried, Director, Region 7, N. L. R. B., Detroit, Mich., for respondent.
Before WEICK, EDWARDS and EN-GEL, Circuit Judges.
ORDER
This appeal is before a special panel of the court designated under Rule 3(e), Rules of the Sixth Circuit, to hear a motion to dismiss petitioner’s pro se petition to review and to hear in connection therewith a motion filed in this court for an order to transcribe and file herein a certified copy of proceedings of the National Labor Relations Board which are sought here to be reviewed.
The Board’s motion to dismiss the appeal for lack of jurisdiction is well taken. We have no jurisdiction to review a decision of the Board’s General Counsel not to file a complaint alleging unfair labor practice charges. Mayer v. Ordman, 391 F.2d 889 (6th Cir. 1968), cert. denied 393 U.S. 925, 89 S.Ct. 257, 21 L.Ed.2d 261 (1968); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Hernandez v. NLRB, 505 F.2d 119 (5th Cir. 1974); Tensing v. N. L. R. B., 519 F.2d 365 (6th Cir. 1975). It therefore follows that the “Motion for NLRB Transcribes” so styled must be denied, the court noting that the Freedom of Information Act, 5 U.S.C. § 552 et seq., does not in any event vest original jurisdiction in this court to enforce its terms. Accordingly,
IT IS ORDERED that the above captioned appeal be and it is hereby dismissed.
Question: 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_constit
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
Clennie H. SAYLOR, Petitioner-Appellant, v. Roger T. OVERBERG, Supt., Respondent-Appellee.
No. 79-3135.
United States Court of Appeals, Sixth Circuit.
Sept. 14, 1979.
Clennie H. Saylor, Marillyn Fagen D’Amelio, Cleveland, Ohio [Court-Appointed CJA], for petitioner-appellant.
William J. Brown, Atty. Gen. of Ohio, Randall G. Burnworth, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee.
Before LIVELY, ENGEL and KEITH, Circuit Judges.
ORDER
This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the briefs and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.
Petitioner appeals from the District Court’s dismissal of his application for a writ of habeas corpus. 28 U.S.C. § 2254. This was petitioner’s second attempt at ha-beas corpus, his first application having been denied by the District Court, with affirmance by this Court and certiorari denied by the Supreme Court of the United States.
In the present proceedings, the District Court held that petitioner had not exhausted his state remedies with respect to his claim that he was denied effective assistance of counsel in the state proceedings. This particular claim may be raised under Ohio’s Post-Conviction Act, Ohio Rev. Code § 2953.21, et seq. State v. Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976); Burrows v. Engle, 545 F.2d 552 (6th Cir. 1976). This Court’s subsequent decision in Keener v. Ridenour, 594 F.2d 581 (6th Cir. 1979), does not require a contrary conclusion under the facts of this case.
The District Court held that the other two claims in his application for habeas corpus have been included, in somewhat different form, in petitioner’s previous ha-beas corpus action, and declined to consider them. Rule 9, Rules Governing Section 2254 cases. We find no abuse of discretion in this action of the District Court.
One of the previously considered grounds was the claim that there was insufficient evidence to support petitioner’s conviction for perjury. The District Court in the earlier habeas corpus action applied the test of “totally devoid of evidentiary support,” Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), in finding petitioner had not made out a case of due process violation. Subsequently, the Supreme Court and this Court have announced a less stringent test in considering habeas corpus claims based on insufficiency of the evidence. Jackson v. Virginia, - U.S. -, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Speigner v. Jago, 603 F.2d 1208 (6th Cir. 1979).
Applying the less stringent standard, we find that the evidence was such that a rational factfinder could have found petitioner guilty beyond a reasonable doubt of perjury under Ohio law. The petitioner is not entitled to habeas relief on the basis of an alleged insufficiency of the evidence at his state trial.
The panel concludes that the questions on which decision of this case depends are so unsubstantial as not to require further argument. The judgment of the District Court is affirmed. Rule 9(d)3, Rules of the Sixth Circuit.
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer:
|
songer_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.
McGRATH, Attorney General, v. HUNT, HILL & BETTS.
No. 160, Docket 22199.
United States Court of Appeals Second Circuit.
Argued Feb. 7, 1952.
Decided Feb. 27, 1952.
Harold I. Baynton, Asst. Atty. Gen., Myles J. Lane, U. S. Atty., New York City, James D. Hill, George B. Searls, Washington, D. C., and John F. Cushman, Attorneys, Department of Justice, for appellant.
Hunt, Hill & Betts, New York City, George Whitefield Betts, Jr., James E. Ben-net, Jr., and Helen F. Tuohy, all of New York City, oí counsel, for appellee.
Before SWAN, Chief Judge, and L. HAND, and CLARK, Circuit Judges.
PER CURIAM.
This is an appeal from an order in a proceeding under section 17 of the Trading with the Enemy Act, 50 U.S.C.A. Appendix, § 17. The case was heard upon the petition, answer and supporting affidavits. The order denied the petitioner’s application that the respondent be forthwith directed to pay over $5,000 in compliance with a Vesting Order and Turn Over Directive issued by the petitioner and served upon the respondent. Before reaching the merits of the appeal this court must determine its own jurisdiction. Section 17 gives “a right of appeal from the final order or decree” of the district court as provided in sections 128 and 238 of the Act of March 3. 1911. These sections now appear as sections 129H1293 of Title 28. It is clear from the district court’s opinion that the order on appeal is not a final order. Denial of a motion for summary judgment is not an appealable order. In re Finkelstein, 2 Cir., 102 F.2d 688, 689; Marcus Breier Sons v. Marvlo Fabrics, 2 Cir., 173 F.2d 29; Morgenstern Chemical Co. v. Schering Corp., 3 Cir., 181 F.2d 160, 161. Accordingly the appeal must be dismissed.
Appeal dismissed.
. The court concluded its opinion as follows: “Here the respondent has adequately raised the issues by its answer to .the petition. The government has not filed any affidavits in reply to the answering affidavits of the respondent. It may do so. But even if the main allegations of the special defenses are controverted by the government, an issue of fact will be presented which should be tried by this court. Under the- circumstances no summary order will be granted under Section 17 at this time.”
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
|
songer_appel1_1_4
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant.
STANDARD FINANCIAL CORPORATION, a New York corporation, Plaintiff-Appellee, v. AUTOMATIC FOODS CORPORATION, an Illinois corporation, Robo-Matic Vending, Inc., an Illinois corporation, Jack E. Trost and Harold J. Carlsen, Defendants, and Percy J. Preston and Harry E. Sloan, Defendants-Appellants.
No. 15938.
United States Court of Appeals Seventh Circuit.
Aug. 9, 1967.
Rehearing Denied Sept. 15, 1967.
Michael Levin, Michael M. Kachigian, Donald A. Mitchell, Chicago, Ill., for appellants.
Edward Rothbart, Thomas E. Moran, Joseph Stein, Chicago, Ill., for appellee.
Before SCHNACKENBERG, ENOCH and SWYGERT, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Percy J. Preston and Harry E. Sloan, defendants, appeal from a judgment of the district court against them for |154,179.63 with interest and costs of suit, in favor of Standard Financial Corporation, a New York corporation, plaintiff. Their attorneys in their brief state that the court made a finding that malice was the gist of the action.
Named as additional defendants were Automatic Foods Corporation and Robo-Matic Vending, Inc., Illinois corporations, as well as Jack E. Trost and Harold J. Carlsen.
In this action plaintiff seeks damages which it charges were caused by Sloan and Preston, directors and shareholders of Robo-Matic, which had guaranteed payment of obligations to be paid to plaintiff. It relies on said defendants’ distribution to themselves of all of the assets of Robo-Matic.
There is substantial evidence in the record supporting findings of fact by the district court to the effect that (1) Automatic Foods on July 24, 1958 entered into an agreement with plaintiff guaranteeing prompt payment of chattel mortgages and lease obligations sold to it by Automatic, (2) defendants Trost, Sloan and Preston guaranteed 10% of said payment by Automatic to plaintiff, and (3) Robo-Matic guaranteed the payment by Automatic of all monies to be paid by Automatic to plaintiff. Such evidence also supports the court’s findings that plaintiff relied upon said guaranties in purchasing chattel mortgages and lease obligations from Automatic and that Sloan and Preston each owned 50% of Robo-Matic’s stock, as well as 30% of the stock of Automatic and each was a director of both corporations when the guaranty of Robo-Matic was given and plaintiff purchased from Automatic chattel mortgages and lease obligations.
On August 19, 1958, Robo-Matic filed with the secretary of state of Illinois a statement of intent to dissolve by voluntary consent of stockholders pursuant to Illinois law and it was certified to the attorney-general for involuntary dissolution on November 16, 1959 for failure to file an annual report and pay franchise taxes. Robo-Matic did not mail to plaintiff a statement of intent to dissolve as required by law.
Between October 1958 and July 1959, Robo-Matic distributed in cash to defendant Preston $112,346.20 and to defendant Sloan $132,118.20. In September, 1959 it distributed to Preston an additional $20,000 in cash. Sloan and Preston were directors and shareholders of Robo-Matic at the time of these distributions. Robo-Matic is insolvent and has no assets.
However, in this court, counsel for Preston and Sloan argue that plaintiff did not purchase commercial paper from Automatic until February 26, 1959, and that Robo-Matic’s liability, if any, did not arise until then, and that the liability of Sloan and Preston did not arise until the default of Automatic on July 1, 1959. They pursue their theory further by saying that consequently their acts in October 1958 in withdrawing the principal assets of Robo-Matic “before the existence of a creditor-debtor relation” between plaintiff and any defendants did not give rise to any liability on their part and certainly were not such acts as to charge them with malice. We. reject this argument.
Under Illinois law a more realistic. view is taken of the right of a creditor. In Dunnigan v. Stevens, 122 Ill. 396, at 403-404, 13 N.E. 651, at 653-654 (1887), the court remarked:
“It is again said, the maker might pay the notes at maturity, and so the indorser not have them to pay. But this would not be inconsistent with the indorser’s liability for the payment of the notes.
“The same might be said in respect of a surety or a guarantor, that the principal debtor might pay the debt on its coming due; yet that would not militate against .the previous obligation of the surety or guarantor to pay the debt. * * *”
Thus in the case at bar the record shows that plaintiff relied on the guarantor Robo-Matic. On the facts of this case we fail to see how voluntary dissolution of Robo-Matic by Sloan and Preston, accompanied by a distribution of its assets to them as shareholders, can be permitted to defeat the rights of plaintiff. We cannot believe that Illinois law tolerates such a blatant disregard by Sloan and Preston of their and Robo-Matic’s guaranties. We agree with the conclusion of the district court that they acted fraudulently and with malice and that Sloan and Preston are liable to plaintiff for its loss and damage arising therefrom.
We affirm the judgment of the district court;
■Judgment affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant?
A. auto industry
B. chemical industry
C. drug industry
D. food industry
E. oil & gas industry
F. clothing & textile industry
G. electronic industry
H. alcohol and tobacco industry
I. other
J. unclear
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.
AMERICAN FOREIGN SERVICE ASSOCIATION et al. v. GARFINKEL, DIRECTOR, INFORMATION SECURITY OVERSIGHT OFFICE, et al.
No. 87-2127.
Argued March 20, 1989
Decided April 18, 1989
Patti A. Goldman argued the cause for appellants. With her on the briefs were Alan B. Morrison, Paul Alan Levy, and Susan Z. Holik.
Edwin S. Kneedler argued the cause for appellees. With him on the brief were Acting Solicitor General Bryson, Assistant Attorney General Bolton, Deputy Solicitor General Merrill, Barbara L. Herwig, and Freddi Lipstein.
Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union by Kate Martin, Gary M. Stem, Steven R. Shapiro, and John A. Powell; for the American Federation of Labor and Congress of Industrial Organizations et al. by Robert M. Weinberg, Walter Kamiat, Laurence Gold, George Kaufmann, Mark Roth, and Charles A. Hobbie; and for the Government Accountability Project et al. by Joseph B. Kennedy.
Briefs of amici curiae were filed for the United States Senate by Michael Davidson, Ken U. Benjamin, Jr., and Morgan J. Frankel; and for the Speaker and Leadership Group of the United States House of Representatives by Steven R. Ross and Charles Tiefer.
Per Curiam.
As a condition of obtaining access to classified information, employees in the Executive Branch are required to sign “nondisclosure agreements” that detail the employees’ obligation of confidentiality and provide for penalties in the event of unauthorized disclosure. Two such nondisclosure forms are at issue in this case. One, Standard Form 189, was devised by the Director of the Information Security Oversight Office (DISOO) (now appellee Garfinkel); the other, Form 4193, was created by the Director of Central Intelligence (DCI) (now appellee Webster). Both of these forms forbade employees to reveal classified or “classifiable” information to persons not authorized to receive such information, App. 15, 19, and made clear that employees who disclosed information in violation of these agreements could lose their security clearances, their jobs, or both. Id., at 16, 21. Neither form defined the term “classifiable.” The DISOO eventually promulgated a regulation that defined the term “classifiable” in Form 189 to include only unmarked classified information or unclassified information that was “in the process of a classification determination.” Under this regulation, moreover, an employee would violate the nondisclosure agreement by disclosing unclassified information only if that employee “knows, or reasonably should know, that such information is in the process of a classification determination and requires interim protection.” 52 Fed. Reg. 48367 (1987). For those employees who signed Form 4193, however, the DCI did not attempt to define “classifiable.” More than half of the Federal Government’s civilian and military employees have signed either Form 189 or 4193. Brief for Appellants 5.
Section 630 of the Continuing Resolution for Fiscal Year 1988, Pub. L. 100-202, 101 Stat. 1329-432, enacted by Congress in 1987, prohibited the expenditure of funds in fiscal year 1988 for the implementation or enforcement of Form 189, Form 4193, or any other form that violated one of its five subsections. In response to this statute, appellee Garfinkel ordered agencies to cease using Form 189, but several agencies nevertheless required approximately 43,000 employees to sign the form after § 630 was enacted. Brief for Appellants 10. The DCI, in contrast, continued to require employees to sign Form 4193, but attached a paragraph to the form stating that the nondisclosure agreement would “be implemented and enforced in a manner consistent with” the statute of which § 630 was a part. App. 26-27. Three months after § 630 became law, the DCI replaced Form 4193 with Form 4355, which eliminated the term “classifiable.” National Federation of Federal Employees v. United States, 688 F. Supp. 671, 680, n. 11 (DC 1988).
Appellant American Foreign Service Association (AFSA) and several Members of Congress brought the present lawsuit challenging appellees’ use of Forms 189 and 4193 on the ground that they violated §630. They sought declaratory and injunctive relief that would (1) bar appellees from requiring employees to execute or sign Form 4193 during fiscal year 1988; (2) compel appellees to treat any Form 4193 agreement signed after December 22, 1987 (the effective date of § 630), as void; and (3) direct appellees to notify all employees who signed Form 189 or 4193 after December 22, 1987, that these agreements were void and that the terms of such forms signed before that date could not be enforced in fiscal year 1988. App. 10. This lawsuit was consolidated with two other cases, brought by the National Federation of Federal Employees and the American Federation of Government Employees, which sought to enjoin the use of Forms 189 and 4193 because, among other things, they violated § 630 and because the term “classifiable” was so vague and overbroad that it inhibited employees’ speech in violation of the First Amendment.
The District Court for the District of Columbia concluded that appellant AFSA had standing to challenge the nondisclosure forms on behalf of its members, but that the Members of Congress lacked standing to challenge the use of the forms. 688 F. Supp., at 678-682. The court then assumed that “the Executive’s actions since enactment of section 630 do not comply with the requirements of that legislation,” id., at 683, and n. 16, because the DCI had continued to require employees to sign Form 4193 for three months after enactment of § 630 despite § 630’s specific prohibition on the use of that form. Acknowledging that, during that time, the DCI had added a paragraph to Form 4193 stating that the agreement would be enforced in a manner consistent with § 630, the District Court nevertheless concluded that this action was not “‘true to the congressional mandate from which it derives authority,’” id., at 683-684, n. 16, quoting Farmers Union Central Exchange, Inc. v. FERC, 236 U. S. App. D. C. 203, 217, 734 F. 2d 1486, 1500 (1984), and that review of the Executive’s action under the Administrative Procedure Act, 5 U. S. C. §706, “likely” would show that the Executive’s action was contrary to law, 688 F. Supp., at 684, n. 16. Having thus skirted the statutory question whether the Executive Branch’s implementation of Forms 189 and 4193 violated § 630, the court proceeded to address appellees’ argument that the lawsuit should be dismissed because §630 was an unconstitutional interference with the President’s authority to protect the national security. Concluding that § 630 “impermissibly restricts the President’s power to fulfill obligations imposed upon him by his express constitutional powers and the role of the Executive in foreign relations,” id., at 685, the court entered summary judgment in favor of appellees.
Appellants took a direct appeal from the District Court’s judgment pursuant to 28 U. S. C. § 1252, and we noted probable jurisdiction, 488 U. S. 923 (1988). In spite of the importance of the constitutional question whether § 630 impermissibly intrudes upon the Executive’s authority to regulate the disclosure of national security information — indeed, partly because of it — we remand this case to the District Court without expressing an opinion on that issue.
Events occurring since the District Court issued its ruling place this case in a light far different from the one in which that court considered it. Since issuing the decision that we now review, the District Court has ruled on the constitutional challenge presented by the cases with which the present one was consolidated, and has decided that the unadorned term “classifiable” used in Forms 189 and 4193 is unconstitutionally vague. See National Federation of Federal Employees v. United States, 695 F. Supp. 1196, 1201-1203 (DC 1988). The court further held that the DISOO’s definition of the term “classifiable,” see supra, at 155, would remedy this vagueness, and ordered appellees to notify employees either that this definition was in force or that no penalties would be imposed for the disclosure of “classifiable” information. 695 F. Supp., at 1203-1204. Appellees thereafter deleted the word “classifiable” — a primary focus of appellants’ challenge to Forms 189 and 4193 — from all nondisclosure forms, and replaced it with the definition given in the DISOO’s regulation. They also furnished individualized notice of this change to employees who signed either Form 189 or Form 4193. 53 Fed. Reg. 38278 (1988); Motion to Affirm 13. According to appellants, however, appellees have notified only current employees of the refinement of the term “classifiable”; former employees, who signed Form 189 or 4193 but have left the employment of the Federal Government, have not received such notice. Brief for Appellants 15. The controversy as it exists today is, in short, quite different from the one that the District Court considered.
Indeed, appellees urge us to hold the case moot to the extent that it challenges the use of the term “classifiable” in Forms 189 and 4193. Brief for Appellees 31-32. As to current employees who have been notified that the term “classifiable” no longer controls their disclosure of information, the controversy is indeed moot. Appellants emphasize, however, that former employees have not been informed of the switch in terminology; as to them, the controversy whether they should have received notice of this change remains alive. Brief for Appellants 20. We decline to decide the merits of appellants’ request for individualized notice to these employees, however, because the questions whether individual notice is required by § 630 and whether appellants’ complaint can be read to request such notice for former employees, see Brief for Appellees 32, n. 24 (arguing that it cannot be so read), are questions best addressed in the first instance by the District Court.
A second reason why we remand this case for further proceedings rather than ordering it dismissed is that appellants argue that the definition of “classified information” now supplied by the DISOO, 53 Fed. Reg. 38279 (1988) (to be codified in 32 CFR § 2003.20(h)(3)), does not comply with § 630. They contend that the DISOO’s definition prohibits disclosure of information that an employee reasonably should have known was classified, whereas subsection (1) of § 630 refers only to information that is “known by the employee” to be classified or in the process of being classified. Brief for Appellants 19-20. In contrast, appellees and the Senate as amicus argue that there is no inconsistency between § 630(1) and this new definition. Brief for Appellees 39-41; Brief for United States Senate as Amicus Curiae 17-18. It appears that, in order to press this issue, appellants would be forced to amend their complaint in order to take into account the new definition of the term “classified.” Brief for Appellees 41. Because the decision whether to allow this amendment is one for the District Court, and because appellants’ argument raises a question of statutory interpretation not touched upon by the District Court, we leave these matters for that court to decide in the first instance.
In addition, there remains a question whether the forms comply with subsections (3), (4), and (5) of § 630, dealing with disclosure of classified information to Congress. Both appellants and appellees apparently agree that these subsections simply preserve pre-existing rights, rights guaranteed by other statutes and constitutional provisions. Brief for Appellants 38-40; Brief for Appellees 48. The only relief appellants request with respect to this portion of the case is notice to employees informing them that Forms 189 and 4193 did not alter those pre-existing rights. Brief for Appellants 38. No actual instance in which an employee sought to disclose information to Congress, and was prohibited from doing so, has been brought to our attention. There thus exists a substantial possibility that this last portion of the case is not ripe for decision, and this is exactly the argument pressed by several amici. Brief for American Civil Liberties Union as Amicus Curiae 28-48; Brief for Speaker and Leadership Group of House of Representatives as Amicus Curiae 12-16; Brief for United States Senate as Amicus Curiae 15-21. We are not, however, disposed to decide for ourselves whether this is so. Since the District Court analyzed the interaction between §630 and the Executive Branch’s nondisclosure policy only in abbreviated fashion, we do not have the benefit of a lower court’s interpretation of the statute and of Executive policy to help us decide whether the case is ready for decision or, if it is, to guide our own resolution of the merits. Again, therefore, we return these questions to the District Court to allow it to sort them out in the first instance.
Because part of the controversy has become moot but other parts of it may retain vitality, we vacate the judgment below and remand for further proceedings consistent with this opinion. See, e. g., United States Dept. of Treasury v. Galioto, 477 U. S. 556, 560 (1986); United States v. Munsingwear, Inc., 340 U. S. 36, 39-40 (1950). In doing so, we emphasize that the District Court should not pronounce upon the relative constitutional authority of Congress and the Executive Branch unless it finds it imperative to do so. Particularly where, as here, a case implicates the fundamental relationship between the Branches, courts should be extremely careful not to issue unnecessary constitutional rulings. On remand, the District Court should decide first whether the controversy is sufficiently live and concrete to be adjudicated and whether it is an appropriate case for equitable relief, and then decide whether the statute and forms are susceptible of a reconciling interpretation; if they are not, the court may turn to the constitutional question whether § 630 impermissibly intrudes upon the Executive Branch’s authority over national security information. See, e. g., Ashwander v. TVA, 297 U. S. 288, 345-356 (1936) (Brandeis, J., concurring); Rescue Army v. Municipal Court of Los Angeles, 331 U. S. 549 (1947); Clark v. Jeter, 486 U. S. 456, 459 (1988).
The judgment of the District Court for the District of Columbia is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Seetion 630 provides:
“No funds appropriated in this or any other Act for fiscal year 1988 may be used to implement or enforce the agreements in Standard Forms 189 and 4193 of the Government or any other nondisclosure policy, form or agreement if such policy, form or agreement:
“(1) concerns information other than that specifically marked as classified; or, unmarked but known by the employee to be classified; or, unclassified but known by the employee to be in the process of a classification determination;
“(2) contains the term ‘classifiable’;
“(3) directly or indirectly obstructs, by requirement of prior written authorization, limitation of authorized disclosure, or otherwise, the right of any individual to petition or communicate with Members of Congress in a secure manner as provided by the rules and procedures of the Congress;
“(4) interferes with the right of the Congress to obtain executive branch information in a secure manner as provided by the rules and procedures of the Congress;
“(5) imposes any obligations or invokes any remedies inconsistent with statutory law: Provided, That nothing in this section shall affect the enforcement of those aspects of such nondisclosure policy, form or agreement that do not fall within subsections (1) — (5) of this section.”
Section 630 applied only to fiscal year 1988; however, § 619 of the Treasury, Postal Service and General Government Appropriations Act, 1989, Pub. L. 100-440, 102 Stat. 1756, includes restrictions on expenditures of funds during fiscal year 1989 that are identical to those contained in § 630.
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_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.
CARBON FUEL COMPANY, a corporation, Appellee, v. UNITED MINE WORKERS OF AMERICA, Appellant.
No. 74-1598.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 8, 1975.
Decided June 19, 1975.
James M. Haviland, Charleston, W. Va. (Joseph A. Yablonski, Washington, D. C., Lewis D. Sargentich, Cambridge, Mass., and Daniel B. Edelman, Washington, D. C., on brief), for appellant.
Forrest H. Roles, Union, W. Va. (David D. Johnson, Jr., and Roger A. Woife, Jackson, Kelly, Holt & O’Farrell, Charleston, W. Va., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.
RUSSELL, Circuit Judge:
The appellant Union appeals from a conviction entered for contempt by reason of an alleged violation of a temporary restraining order theretofore issued by the District Court. The conflicting positions of the parties on appeal relate to the nature of the contempt adjudged by the District Court. It is conceded that whether the contempt be considered civil or criminal is largely the dispositive issue in the appeal. If the contempt be deemed civil, the appellee correctly takes the position that the order of the District Court would not be appealable. This is so, because, while the appellant Union does not entirely concede the non-appealability of a civil contempt by a party to the action, the rule is settled that, “[A] civil contempt proceeding is in effect a continuation of the main action and therefore a party to a suit may not review upon appeal an order fining or imprisoning him for civil contempt except in connection with appeal from a final judgment in the main action.” Wright, Civil and Criminal Contempt in the Federal Courts, 17 F.R.D. 167, 176 (1955). On the other hand, it is equally well established that criminal contempt proceedings are “independent of the main action” and any conviction therein is “a final order and appealable * * *.” Wright, Civil and Criminal Contempt in the Federal Courts, supra, at 176; Duell v. Duell (1949), 178 F.2d 683, 688, 14 A.L.R.2d 560. And in that connection, the appellee concedes that, if the contempt proceedings be deemed criminal in nature, the judgment of the District Court must be reversed for failure to observe the procedural requirements mandated in such proceedings.
We are of the opinion the contempt proceedings herein were criminal in character, that the judgment of contempt is therefore appealable, and, since there was a denial of due process in the proceedings as had, the judgment must be reversed.
The true distinction between civil and criminal contempts lies in “what * * * the court primarily seek[s] to accomplish by imposing sentence” in the proceedings. Shillitani v. United States (1966), 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622; International Business Machines Corp. v. United States (2d Cir. 1973), 493 F.2d 112, 114-5, cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774; Dobbs, Contempt of Court; A Survey, 56 Cornell L.Rev. 183, 235 (1971). Civil contempt, on the one hand, is “ ‘wholly remedial’ serves only the purpose of a party litigant, and is intended to coerce compliance with an order of the court or to compensate for losses or damages caused by noncompliance.” Southern Railway Company v. Lanham (5th Cir. 1969), 403 F.2d 119, 124, 33 A.L.R.3d 427; Cromaglass Corporation v. Ferm (3d Cir. 1974), 500 F.2d 601, 604. Civil contempt is conditional or contingent in nature, terminable if the contemnor purges himself of the contempt. De Parcq v. United States Court for So. Dist. (8th Cir. 1956), 235 F.2d 692, 699. On the other hand, criminal contempt is punitive in nature, is intended to vindicate the authority of the court, and cannot be purged by any act of the contemnor. Nye v. United States (1941), 313 U.S. 33, 43, 61 S.Ct. 810, 85 L.Ed. 1172. It is “unconditional, since it penalizes yesterday’s defiance rather than seeking to coerce tomorrow’s compliance. It cannot be ended or shortened by any act by defendant.” Wright & Miller, supra, at 585.
Measured by these standards, we think it obvious that, in essence, these contempt proceedings were criminal in nature. The fine imposed was unconditional and punitive in character; it ran to the clerk of the court and not to the appellee. It was not intended to be “compensatory” of any losses sustained by the appellee as a result of the contempt. Had the fine been intended for the benefit of the appellee by way of compensation for loss sustained, it would have been made “payable to the complainant” and would necessarily have been “based upon evidence of complainant's actual loss; ” moreover, the “right [of the appellee], as a civil litigant, to the compensatory fine [would have been] dependent upon the outcome of the basic controversy.” United States v. Mine Workers (1947), 330 U.S. 258, 304, 67 S.Ct. 677, 701, 91 L.Ed. 884. It is true the appellee stated it was prepared to prove losses of $21,000 per day but it actually offered no evidence “of complainant’s actual loss.” And the fine imposed bears no possible relation to the daily loss as claimed by the appellee. The fine was thus clearly punitive.
We consider of no moment that the proceedings were begun and designated as a civil contempt proceeding. The nature of the fine imposed determines the character of the proceedings without regard to the characterization of the proceedings, either procedurally or substantively, as made by the parties themselves. See Shillitani, supra; Southern Railway Company v. Lanham, supra.
After the District Court had made its oral ruling imposing a fine of $10,000 on the appellant Union, it requested the appellee to submit a formal order, embodying findings of fact and conclusions of law in conformity with its ruling. The appellee did that. In its findings of fact, as so submitted, it included no finding on the amount of loss, if any, sustained by the appellee on account of the alleged violation of the temporary restraining order. It did, however, describe the proceeding as one in “civil contempt” ánd provided that the fine imposed be paid to the appellee. The appellant, it is argued by the appellee, objected to this latter provision and, in the course of stating its objection, observed it made no difference to whom the fine was paid in determining whether the proceedings in contempt were civil or criminal. The appellant did, it is admitted, contend at all times that the proceedings were criminal. The Court, however, on its own, made its own decision, as evidenced by the final order entered, that the fine should be paid to the clerk of the court and not to the appellee and omitted the language describing the proceeding as for “civil contempt.” And this was in keeping with its earlier ruling, which was manifestly expressive of a criminal contempt rather than a civil contempt.
The conviction for contempt is accordingly vacated and the cause is remanded for further proceedings not inconsistent herewith.
. The appellee, with commendable candor, states in its brief “that if the conviction were determined to be criminal contempt (of which this Court would have jurisdiction) it could not be defended because the procedure was clearly inadequate for criminal contempt.” (Footnote omitted.)
. See Wright & Miller, Federal Practice and Procedure, § 2960, vol. 11 at 584:
“The relief granted in civil contempt proceedings, * * * is compensatory or coercive. This often takes the form of a fine in the amount of the damage sustained by plaintiff * *
. In Lanham the Court imposed an unconditional fine, payable as in this case to the clerk of court, for contempt in wilfully failing to obey an order for production in a civil action. The contempt proceedings were described as civil by the District Court. The appellate court held, however, that the proceedings were criminal since it afforded no relief to the private suitor and did not permit purgation.
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_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MERCADO RIERA v. MERCADO RIERA et al. SAME et al. v. MERCADO RIERA.
Nos. 4256, 4264.
Circuit Court of Appeals, First Circuit.
April 9, 1948.
Rehearing Denied May 13, 1948.
Pedro M. Porrata and Benjamin Ortiz, both of Ponce, Puerto Rico, Edward J. McGratty, Jr., and Davis, Polk, Wardwell, Sunderland & Kiendl, all of New York City, Charles Cuprill Oppenheimer, for Mario Mercado Riera, Executor.
José A. Poventud, of Ponce, Puerto Rico, for Adrian and Margarita Mercado Riera.
Celestino Iriarte, F. Fernandez Cuyar and H. Gonzalez Blanes, all of San Juan, Puerto Rico, for Maria-Louisa Mercado Riera.
Before MAGRUDER, MAHONEY and WOODBURY, Circuit Judges.
WOODBURY, Circuit Judge.
These are cross-appeals from a final decision of the Supreme Court of Puerto Rico in proceedings on the final account of Mario Mercado Riera as testamentary executor of his deceased father’s estate. It is the accounting proceedings to which we referred incidentally as “raging in the insular courts” in our opinion on anothe'r phase of this bitter and long drawn out controversy between three of the decedent’s four children, heirs and equal residuary legatees. Mercado Riera v. Mercado Riera, 1 Cir., 152 F. 2d 86, 91.
The final account here in issue was submitted by the executor, now the ex-executor, in March, 1940, subject to supplementary accounts, and thereupon his brother and one of his sisters (the other sister has remained neutral throughout this sordid dispute) filed 19 objections thereto in the insular district court of Ponce. That court, after hearing testimony for 31 days and considering briefs totaling 700 typewritten pages, filed an opinion of 30 typewritten pages in accordance with which it entered a “final order or decree” modifying the executor’s account in 11 particulars, and as so modified, approving it.
Thereupon both the executor and the opposing heirs appealed to the Supreme Court of Puerto Rico — the former attributing 20 errors to the insular district court and the latter 13- — and submitted to that court a record consisting of 2,838 pages of testimony, 8S5 pages of documentary evidence, and briefs totaling 881 pages. The Supreme Court of Puerto Rico, remarking that “it will be seen that it has been no easy task to extract from that mountain of papers the very simple questions involved in this long and seemingly interminable dispute”, considered every one of the errors attributed by the parties to the district court in an opinion of .66 typewritten pages and an opinion on re-hearing of 15 typewritten pages. As a result that court entered a judgment modifying the “decision or final order” of the district court in 9 particulars, and as so modified, affirming it “without special imposition of costs.”
The ex-executor then appealed to this court under 28 U.S.C.A. § 225(a), Fourth, and the opposing heirs as appellees filed a motion under our Rule 39(b) to dismiss or in the alternative to affirm. Subsequently the opposing heirs also appealed, but the executor as appellee therein has never filed or asked to file á motion to dismiss or affirm similar to the one filed by the opposing heirs as appellees in the other appeal. However, this does not preclude us from dealing with both appeals at this stage since under our rule this court may “upon its own motion, dismiss the appeal or affirm the judgment appealed from where the law and justice of the case so require.” In our opinion the law permits and justice requires that the judgment of the Supreme Court of Puerto Rico should be summarily affirmed on both appeals.
Both parties as appellants, now apparently for the first time, assert the existence of a wide variety of questions of federal law. We have carefully considered their assertions and find them wholly unwarranted. Indeed we find them so unwarranted that it would serve no useful purpose even to catalogue them, far less to discuss them.
All that is presented by these appeals are pure questions of local law, and only two of them are of consequence. They are with respect to the executor’s compensation and with respect to the guardianship of a minor, and they are the two questions which the Supreme Court of Puerto Rico granted rehearing to consider more fully. Therefore both of these questions have received particularly careful and full consideration by the court appealed from. Not only can we discern no “clear or manifest” error, or anything “inescapably wrong” (De Castro v. Board of Commissioners, 322 U.S. 451, 458, 64 S.Ct. 1121, 88 L.Ed. 1384, and cases cited) in the decision of either of these questions of purely local concern, or of any of the multitude of other similar questions presented, but we cannot even discern any error at all in their decision. Indeed, an inspection of the record and a study of the painstaking opinion of the Supreme Court of Puerto Rico, in which all questions presented were carefully, even elaborately, discussed, leaves us with the firm conviction that a hearing on these appeals could not possibly disclose the existence of any error of sufficient magnitude to warrant reversal. Under these circumstances it seems to us that the law permits summary affirmance under our Rule 39(b) since a hearing on the appeals would clearly be futile (Mario Mercado E Hijos v. Commins, 322 U.S. 465, 466, 64 S.Ct. 1118, 88 L.Ed. 1396) and that justice requires summary affirmance in order to prevent further useless expense and delay in this already overly long and undoubtedly very expensive litigation. Appropriate orders will be entered in both appeals.
On this previous appeal we affirmed judgments of the Supreme Court of Puerto Rico ordering the executor to distribute .the estate in his hands according to the terms of a certain compromise contract executed by the four heirs and other interested parties on September 9,1938.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
sc_casedisposition
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
GOMEZ v. UNITED STATES
No. 88-5014.
Argued April 24, 1989
Decided June 12, 1989
Stevens, J., delivered the opinion for a unanimous Court.
Joel B. Rudin argued the cause for petitioners in both cases. With him on the briefs was Jerald Levine.
Michael K. Kellogg argued the cause for the United States. On the brief were Acting Solicitor General Bryson, Assistant Attorney General Dennis, and Richard J. Lazarus.
Together with No. 88-5158, Chavez-Tesina v. United States, also on certiorari to the same court.
Burton H. Shostak filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.
Justice Stevens
delivered the opinion of the Court.
Since its enactment in 1968, the Federal Magistrates Act has permitted district courts to assign magistrates certain described powers and duties, as well as “such additional duties as are not inconsistent with the Constitution and laws of the United States.” The principal question presented is whether presiding at the selection of a jury in a felony trial without the defendant’s consent is among those “additional duties.”
I
Petitioners Jose Gomez and Diego Chavez-Tesina were among 11 persons named as defendants in a 21-count indictment alleging commission of multiple felonies, including conspiracy and racketeering, involving distribution of cocaine. Having elected to stand trial, petitioners and three codefendants appeared before the Federal Magistrate to whom the District Judge had delegated the task of selecting a jury. Defense counsel made timely objections to this assignment. Following a telephone conversation with the District Judge, the Magistrate noted their objections and commenced voir dire. App. 13-16. As is the practice in the Eastern District of New York, the Magistrate, rather than the attorneys, posed questions to the venirepersons. The Magistrate also introduced the prospective jurors to the offenses charged; instructed them on numerous points of law, including the presumption of innocence and the different burdens of persuasion in civil and criminal trials; and admonished chosen jurors not to discuss the case with anyone. See generally Tr. of Jury Selection. When defense counsel appeared before the District Judge eight days later, they renewed their objections to the Magistrate’s role in jury selection. The District Judge overruled the objections but said he would review any of the Magistrate’s rulings de novo. App. 19. Defendants registered no specific challenge to any juror, and trial proceeded; 10 days later, the jury returned guilty verdicts against all five defendants. Gomez received two concurrent 10-year sentences, to be followed by a special 10-year parole term; Chavez-Tesina was ordered to serve 20 years on one count, with three lesser sentences to run concurrently, and lifetime special parole.
On appeal, defendants made no special claim of prejudice. They contended, as petitioners do before this Court, that the Magistrate had no power to conduct the voir dire examination and jury selection. A divided panel of the Court of Appeals rejected this argument. United States v. Garcia, 848 F. 2d 1324 (CA2 1988). The court held that Congress intended the additional duties clause to be construed broadly enough to include jury selection by magistrates. Id., at 1329. Such a designation, the majority added, does not violate Article III or the Due Process Clause of the Federal Constitution. Id., at 1330-1333. The dissenting judge expressed doubts concerning both the majority’s statutory interpretation and its constitutional analysis, and concluded that the court should exercise its supervisory powers to forbid delegation of voir dire to magistrates “except, possibly, when the parties consent, and then only pursuant to rules controlling the district court’s review.”
The Second Circuit’s decision conflicts with the holding of the Fifth Circuit in United States v. Ford, 824 F. 2d 1430, 1438 (1987) (en banc), cert. denied, 484 U. S. 1034 (1988). The Government had urged the court to construe the additional duties clause of the Federal Magistrates Act to allow judges to delegate jury selection in felony trials even without the defendant’s consent. That construction would provoke “grave constitutional questions,” the en banc majority stated. 824 F. 2d, at 1430; see id., at 1435. After stressing the importance of jury selection and noting the specificity with which Congress defined magistrates’ duties regarding other judicial proceedings, the majority concluded:
“Additional duty is a residuum, granting the power to delegate any task not otherwise forbidden after we carve away that congery of duties that Congress never envisioned would be delegated. We are not persuaded that Congress intended to grant authority to judges to delegate to magistrates the authority to preside over felony trials and over activities integral to and intimately tied with trial.”
We granted certiorari to resolve this important conflict. 488 U. S. 838 (1989).
II
The Federal Magistrates Act provides that a “magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” 28 U. S. C. § 636(b)(3). Read literally and without reference to the context in which they appear, these words might encompass any assignment that is not explicitly prohibited by statute or by the Constitution. The Act itself specifies some proscriptions: magistrates “may hold no other civil or military office or employment under the United States,” § 631(c), nor “engage in the practice of law [or] any other business, occupation, or employment inconsistent with the expeditious, proper, and impartial performance of their duties as judicial officers,” § 632(a). The only legal constraint on many other assignments not expressly barred — whether supervising repair of the courthouse electrical system or presiding at felony trials — must be found, according to the literal reading, in the Constitution. The panel majority below and the dissenters in Ford embraced this construction, despite abiding concerns regarding the constitutionality of delegating felony trial duties to magistrates.
It is our settled policy to avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question. See, e. g., Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841 (1986); United States v. Rumely, 345 U. S. 41, 45 (1953); Crowell v. Benson, 285 U. S. 22, 62 (1932). In these cases, such an alternative interpretation of the additional duties clause readily may be deduced from the context of the overall statutory scheme. Cf. Massachusetts v. Morash, ante, at 115 (“‘[I]n expounding a statute, we [are] not... guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy’”) (quoting Pilot Life Insurance Co. v. Dedeaux, 481 U. S. 41, 51 (1987); Richards v. United States, 369 U. S. 1, 11 (1962)). When a statute creates an office to which it assigns specific duties, those duties outline the attributes of the office. Any additional duties performed pursuant to a general authorization in the statute reasonably should bear some relation to the specified duties. Thus in United States v. Raddatz, 447 U. S. 667, 674-676 (1980); Mathews v. Weber, 423 U. S. 261 (1976); and Wingo v. Wedding, 418 U. S. 461 (1974), we interpreted the Federal Magistrates Act in light of its structure and purpose.
In Mathews, we considered whether preliminary review, argument, and preparation of recommended decisions in Social Security benefits cases were among the “additional duties” that a magistrate could perform. The Government opposed such referrals, arguing that Congress intended a magistrate to be a “‘supernotary/” assuming only the district judge’s “irksome, ministerial tasks,” while the benefits claimant likened the magistrate to a “ ‘para-judge’ ” with “a wide range of substantive judicial duties and advisory functions.” 423 U. S., at 268. Declining to choose either extreme or to read the “additional duties” language literally, we examined the Act’s structure and determined that limited, advisory review, subject to the district judge’s ongoing supervision and final decision, fell among the “range of duties” that Congress intended magistrates to perform. Id., at 270. In accordance with our reasoning in Mathews, our task is to consider the office of magistrate as it pertains to seating a jury in a felony case.
Ill
Before 1968, minor federal legal disputes were settled by United States commissioners, who collected fees for their services and often were not lawyers. Limitations on their jurisdiction resulted in the downgrading or dismissal of criminal offenses that otherwise would have to be tried by district judges. H. R. Rep. No. 1629, 90th Cong., 2d Sess., p. 14 (1968). The new office of magistrate, in contrast, was to be filled in most instances by attorneys. 82 Stat. 1108, 28 U. S. C. § 631(b) (1964 ed., Supp. IV). Paid by salary, magistrates were to be appointed by district judges to definite terms from which they could be removed only for cause. 82 Stat. 1109, 28 U. S. C. §§ 631(e), (h).
With enhanced status came greater responsibility. The Act not only conferred upon magistrates all the powers that commissioners had enjoyed, § 636(a), but also permitted district courts to establish rules by which magistrates could be assigned
“such additional duties as are not inconsistent with the Constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted to—
“(1) service as a special master in an appropriate civil action, pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts;
“(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions; and
“(3) preliminary review of applications for post-trial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing.” § 636(b).
Commissioners had tried only “petty offenses.” Magistrates were empowered to try “minor offenses,” but only upon special designation by the district court and only if the defendant, in writing, specifically waived his or her rights to trial before a judge and perhaps by a jury. 82 Stat. 1116, 18 U. S. C. §3401(b) (1964 ed., Supp. IV). A convicted defendant could appeal to the district court, § 3402, and Congress contemplated that district courts would retain “the greatest possible scrutiny and control of a magistrate’s trial jurisdiction,” H. R. Rep. No. 1629, at 21. Exempted from that jurisdiction were a number of minor offenses — such as bribery and public corruption, deprivation of rights under color of law, and jury tampering, 82 Stat. 1116, 18 U. S. C. § 3401(f) (1964 ed., Supp. IV) — that required the exercise of delicate judgment and “as a matter of sound congressional policy, ought to be tried in the U. S. district courts.” H. R. Rep. No. 1629, at 22.
In 1976, Congress amended the Act “to clarify and further define the additional duties which may be assigned to a United States Magistrate,” H. R. Rep. No. 94-1609, p. 2 (1976). Upon consent of the parties, a magistrate could be designated a special master in any civil case. 90 Stat. 2729, 28 U. S. C. § 636(b)(2) (1976 ed.). A magistrate also could be assigned to “hear and determine any pretrial matter,” subject to reconsideration by the district court on a showing that “the magistrate’s order is clearly erroneous or contrary to law.” § 636(b)(1)(A). Excepted were eight categories of “dispositive” pretrial motions; with regard to these a magistrate might conduct evidentiary and other hearings and recommend dispositions. § 636(b)(1)(B). If a party objected to the magistrate’s recommendation, the judge was to “make a de novo determination” of the matter. § 636(b)(1)(C). The 1968 Act had listed such functions among a magistrate’s additional duties; the 1976 amendments, in contrast, first described specific duties and then stated in a separate subsection that a “magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” § 636(b)(3). A Committee Report explained:
“Under this subsection, the district courts would remain free to experiment in the assignment of other duties to magistrates which may not necessarily be included in the broad category of ‘pretrial matters.’ This subsection would permit, for example, a magistrate to review default judgments, order the exoneration or forfeiture of bonds in criminal cases, and accept returns of jury verdicts where the trial judge is unavailable. This subsection would also enable the court to delegate some of the more administrative functions to a magistrate, such as the appointment of attorneys in criminal cases and assistance in the preparation of plans to achieve prompt disposition of cases in the court.
“If district judges are willing to experiment with the assignment to magistrates of other functions in aid of the business of the courts, there will be increased time available to judges for the careful and unhurried performance of their vital and traditional adjudicatory duties.” H. R. Rep. No. 94-1609, at 12.
By 1979, congressional concerns regarding magistrates’ abilities had decreased; a legislative Committee reported that “the magistrate system now plays an integral and important role in the Federal judicial system.” H. R. Rep. No. 96-287, p. 5 (1979). Accordingly, in the Federal Magistrates Act of 1979, Pub. L. 96-82, 93 Stat. 643-647, Congress enlarged the magistrate’s jurisdiction over civil and criminal trials, codifying some of the experiments conducted under the Act’s additional duties clause. See H. R. Rep. No. 96-287, at 2, 17. Thus since 1979 magistrates have been authorized to preside at, and enter final judgment in, civil trials, including those tried before a jury. 93 Stat. 643-644, 28 U. S. C. § 636(c). For the first time magistrates were permitted to conduct jury, as well as bench, trials on any misdemeanor charge. 93 Stat. 646, 18 U. S. C. § 3401(b). As before, however, a magistrate’s trial jurisdiction can be exercised only upon special designation by the district court, 93 Stat. 643, 28 U. S. C. § 636(c)(1); 93 Stat. 645, 18 U. S. C. § 3401(a), and it remains subject to judicial review.
A critical limitation on this expanded jurisdiction is consent. As amended in 1979, the Act states that “neither the district judge nor the magistrate shall attempt to persuade or induce any party to consent to reference of any civil matter to a magistrate.” 93 Stat. 643, 28 U. S. C. § 636(c)(2). In criminal cases, the Government may petition for trial before a district judge. “Defendants charged -with misdemeanors can refuse to consent to a magistrate and thus effect the same removal,” S. Rep. No. 96-74, p. 7 (1979), for the magistrate’s criminal trial jurisdiction depends on the defendant’s specific, written consent.
IV
Through gradual congressional enlargement of magistrates’ jurisdiction, the Federal Magistrates Act now expressly authorizes magistrates to preside at jury trials of all civil disputes and criminal misdemeanors, subject to special assignment, consent of the parties, and judicial review. The Act further details magistrates’ functions regarding pretrial and post-trial matters, specifying two levels of review depending on the scope and significance of the magistrate’s decision. The district court retains the power to assign to magistrates unspecified “additional duties,” subject only to conditions or review that the court may choose to impose. By a literal reading this additional duties clause would permit magistrates to conduct felony trials. But the carefully defined grant of authority to conduct trials of civil matters and of minor criminal cases should be construed as an implicit withholding of the authority to preside at a felony trial. The legislative history, with its repeated statements that magistrates should handle subsidiary matters to enable district judges to concentrate on trying cases, and its assurances that magistrates’ adjudicatory jurisdiction had been circumscribed in the interests of policy as well as constitutional constraints, confirms this inference. Similar considerations lead us to conclude that Congress also did not contemplate inclusion of jury selection in felony trials among a magistrate’s additional duties.
Even though it is true that a criminal trial does not commence for purposes of the Double Jeopardy Clause until the jury is empaneled and sworn, Serfass v. United States, 420 U. S. 377, 388 (1975), other constitutional rights attach before that point, see, e. g., Brewer v. Williams, 430 U. S. 387, 398 (1977) (assistance of counsel). Thus in affirming voir dire as a critical stage of the criminal proceeding, during which the defendant has a constitutional right to be present, the Court wrote: “ ‘[W]here the indictment is for a felony, the trial commences at least from the time when the work of empanelling the jury begins.’” Lewis v. United States, 146 U. S. 370, 374 (1892) (quoting Hopt v. Utah, 110 U. S. 574, 578 (1884)). See Swain v. Alabama, 380 U. S. 202, 219 (1965) (voir dire “a necessary part of trial by jury”); see also Ricketts v. Adamson, 483 U. S. 1, 3 (1987); United States v. Powell, 469 U. S. 57, 66 (1984). Jury selection is the primary means by which a court may enforce a defendant’s right to be tried by a jury free from ethnic, racial, or political prejudice, Rosales-Lopez v. United States, 451 U. S. 182, 188 (1981); Ham v. South Carolina, 409 U. S. 524 (1973); Dennis v. United States, 339 U. S. 162 (1950), or predisposition about the defendant’s culpability, Irvin v. Dowd, 366 U. S. 717 (1961). Indications that Congress likewise considers jury selection part of a felony trial may be gleaned, inter alia, from its passage in 1975 of the Speedy Trial Act, 18 U. S. C. § 3161 et seq. (1982 ed. and Supp. V), and its placement of rules pertaining to criminal petit juries in a chapter entitled “Trial.” See Fed. Rules Crim. Proc. 23, 24; cf. id., Rule 43(a) (requiring defendant’s presence “at every stage of the trial including the impaneling of the jury”).
Even assuming that Congress did not consider voir dire to be part of trial, it is unlikely that it intended to allow a magistrate to conduct jury selection without procedural guidance or judicial review. Significantly, when Congress clarified the magistrate’s duties in 1976, it did not identify the selection of a jury as either a “dispositive” matter covered by § 636(b)(1)(B) or a “nondispositive” pretrial matter governed by § 636(b)(1)(A). To the limited extent that it fits into either category, we believe jury selection is more akin to those precisely defined, “dispositive” matters for which sub-paragraph (B) meticulously sets forth a de novo review procedure. It is incongruous to assume that Congress implicitly required such review for jury selection yet failed even to mention that matter in the statute. It is equally incongruous to assume, in the alternative, that Congress intended not to require any review — not even the less stringent clearly-erroneous standard applicable to other pretrial matters — of a magistrate’s selection of a jury. Yet one of those assumptions would be a necessary component of a conclusion that Congress intended jury selection to be one of a magistrate’s additional duties.
In any event, we harbor serious doubts that a district judge could review this function meaningfully. Far from an administrative empanelment process, voir dire represents jurors’ first introduction to the substantive factual and legal issues in a case. To detect prejudices, the examiner — often, in the federal system, the court — must elicit from prospective jurors candid answers about intimate details of their lives. The court further must scrutinize not only spoken words but also gestures and attitudes of all participants to ensure the jury’s impartiality. See, e. g., Wainwright v. Witt, 469 U. S. 412, 428, n. 9 (1985) (quoting Reynolds v. United States, 98 U. S. 145, 156-157 (1879)). But only words can be preserved for review; no transcript can recapture the atmosphere of the voir dire, which may persist throughout the trial. Cf. Waller v. Georgia, 467 U. S. 39, 49, n. 9 (1984) (“While the benefits of a public trial are frequently intangible, difficult to prove, or a matter of chance, the Framers plainly thought them nonetheless real”). The absence of a specific reference to jury selection in the statute, or indeed, in the legislative history, persuades us that Congress did not intend the additional duties clause to embrace this function.
V
The Government concedes, as it must, that errors occurring during jury selection may be grounds for reversal of a conviction. Brief for United States 44, n. 41 (citing Batson v. Kentucky, 476 U. S. 79, 85 (1986); Witherspoon v. Illinois, 391 U. S. 510, 522 (1968)). Yet it argues that any error in these cases was harmless because petitioners allege no specific prejudice as a result of the Magistrate’s conducting the voir dire examination. Brief for United States’42-45. We find no merit to this argument. Among those basic fair trial rights that “ ‘can never be treated as harmless’ ” is a defendant’s “right to an impartial adjudicator, be it judge or jury.” Gray v. Mississippi, 481 U. S. 648, 668 (1987) (quoting Chapman v. California, 386 U. S. 18, 23 (1967)). Equally basic is a defendant’s right to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside. Thus harmless-error analysis does not apply in a felony case in which, despite the defendant’s objection and without any meaningful review by a district judge, an officer exceeds his jurisdiction by selecting a jury.
The judgment of the Court of Appeals is
Reversed.
Pub. L. 90-578, 82 Stat. 1108, as amended, 28 U. S. C. §636(b)(3).
Both petitioners were charged with conspiracy to distribute, and actual distribution of, cocaine, in violation of 21 U. S. C. §§841, 846 (1982 ed. and Supp. V). In addition, petitioner Chavez-Tesina was charged with violating the Racketeer Influenced and Corrupt Organizations Act, 18 U. S. C. § 1962(c), and the Travel Act, 18 U. S. C. § 1952 (1982 ed. and Supp. V). United States v. Garcia, 848 F. 2d 1324, 1327 (CA2 1988).
Cited as authority for the assignment was a local rule that states: “Full-time magistrates shall have jurisdiction to discharge the duties set forth in 28 U. S. C. See 636.” Fed. Local Ct. Rule 1 (EDNY 1988); see Garcia, 848 F. 2d, at 1327.
Id., at 1338 (Oakes, J., dissenting). Cf. Fed. Rule Crim. Proc. 24(a).
848 F. 2d, at 1338 (Oakes, J.). Cf. United States v. Ford, 824 F. 2d 1430, 1440 (CA5 1987) (en bane) (Jolly, J., concurring in result) (“[I]t might be appropriate and wise for federal courts, in their supervisory capacity, to enact rules curtailing, or even precluding the use of magistrates at voir dire in certain situations”), cert. denied, 484 U. S. 1034 (1988).
824 F. 2d, at 1438. Nonetheless, because the defendant failed to object and “the trial was fundamentally fair,” the court held that the Magistrate’s participation was harmless error and affirmed the conviction. Id., at 1439; accord, ibid. (Jolly, J., concurring in result). In dissent, four judges maintained that the delegation fell within the express scope of the statute and withstood constitutional scrutiny. Id., at 1440-1448 (Rubin, J.).
The Eighth Circuit has followed the Fifth Circuit in Ford, while two Ninth Circuit opinions decide the issue much as the Second Circuit did below. Compare United States v. Trice, 864 F. 2d 1421 (CA8 1988), with United States v. Peacock, 761 F. 2d 1313 (CA9), cert. denied, 474 U. S. 847 (1986); United States v. Bezold, 760 F. 2d 999 (CA9 1985), cert. denied, 474 U. S. 1063 (1986). See also United States v. Rodriguez-Suarez, 856 F. 2d 135 (CA11 1988) (because no assertion of prejudice, declines to reach merits of claim), cert. denied, 488 U. S. 1045 (1989). In other opinions Courts of Appeals have rejected challenges to a magistrate’s presiding over jury selection on procedural grounds. United States v. Rivera-Sola, 713 F. 2d 866 (CA1 1983) (defendant failed to object, no plain error); United States v. DeFiore, 720 F. 2d 757 (CA2 1983) (failure to object), cert. denied sub nom. Coppola v. United States, 466 U. S. 906 (1984).
Garcia, 848 F. 2d, at 1329 (quoting In re Establishment Inspection of Gilbert & Bennett Manufacturing Co., 589 F. 2d 1335, 1340-1341 (CA7) (in sustaining inspection warrant issued by Magistrate, states that the “ ‘only limitations on section 636(b)(3) are that the duties be consistent with the Constitution and federal laws and that they not be specifically excluded by section 636(b)(1)’”), cert. denied sub nom. Chromalloy American Corp., Federal Malleable Div. v. Marshall, 444 U. S. 884 (1979)); Ford, 824 F. 2d, at 1441 (Rubin, J.).
See, e. g., Hearings on S. 3475 et al. before the Subcommittee on Improvements in Judicial Machinery of the Senate Judiciary Committee, 89th Cong., 2d Sess., and 90th Cong., 1st Sess., p. 109 (1966-1967) (statement of Assistant Attorney General Vinson) (magistrates’ jurisdiction to try minor criminal offenses unconstitutional even with defendant’s waiver of rights); H. R. Rep. No. 1629, 90th Cong., 2d Sess., p. 21 (1968) (disagreeing with Vinson); 114 Cong. Rec. 27338-27343 (1968). See also Ford, 824 F. 2d, at 1437; H. R. Rep. No. 96-287, pp. 32-33 (1979) (dissenting views of Rep. Sensenbrenner).
The Government had argued:
“In the Magistrates Act, Congress gave magistrates only a limited role in the operation of the federal judicial system. District courts were not authorized to delegate to the magistrates all judicial functions that they deemed appropriate. Rather, the role of the magistrates was to assist, and lighten the workload of, district judges by performing relatively minor functions. The statutory phrase authorizing the district courts to assign to magistrates ‘duties... not inconsistent with the Constitution and laws of the United States’ must be read narrowly to reflect the limitations imposed upon the magistrates.” Brief for Petitioner in Mathews v. Weber, O. T. 1975, No. 74-850, p. 8.
“Petty offenses” included “[a]ny misdemeanor, the penalty for which... does not exceed imprisonment for a period of six months or a fine of not more than $500, or both,” 18 U. S. C. § 1(3) (1964 ed.), repealed by Pub. L. 98-473, § 218(a)(1), 98 Stat. 2027.
«<[]y[]inor offenses’ means misdemeanors punishable under the laws of the United States, the penalty for which does not exceed imprisonment for a period of one year, or a fine of not more than $1,000, or both,” 82 Stat. 1116, 18 U. S. C. § 3401(f) (1964 ed., Supp. IV).
“The district judges may, for instance, exercise a veto power over the magistrate’s jurisdiction in particular cases, require reports on eases pending before the magistrate, establish uniform procedures to be followed by all magistrates exercising minor offense trial jurisdiction, and generally supervise the magistrate in the exercise of his trial jurisdiction.” H. R. Rep. No. 1629, at 21.
In part, Congress intended to overturn judicial opinions limiting the scope of the Act, including Wingo v. Wedding, 418 U. S. 461 (1974) (magistrates not authorized to conduct evidentiary hearings in federal habeas corpus actions). H. R. Rep. No. 94-1609, p. 5 (1976); S. Rep. No. 94-625, pp. 3-4 (1976). Our holding in Mathews v. Weber, 423 U. S. 261 (1976) (Act authorizes magistrates to review and recommend disposition on Social Security benefits appeals), meanwhile, garnered approval. H. R. Rep. No. 94-1609, at 6.
The relevant part of the 1976 Act, which has not been amended, reads as follows:
“An Act
“To improve judicial machinery by further defining the jurisdiction of United States magistrates, and for other purposes.
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 636(b) of title 28, United States Code, is amended to read as follows:
“(b)(1) Notwithstanding any provision of law to the contrary—
“(A) a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate’s order is clearly erroneous or contrary to law.
“(B) a judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement.
“(C) 'the magistrate shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties.
“Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.
“(2) A judge may designate a magistrate to serve as a special master pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts. A judge may designate a magistrate to serve as a special master in any civil case, upon consent of the parties, without regard to the provisions of rule 53(b) of the Federal Rules of Civil Procedure for the United States district courts.
“(3) A magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” 90 Stat. 2729, 28 U. S. C. §636.
A table in a Committee Report listed the following as criminal pretrial matters handled by magistrates: arrest warrants, search warrants, bail hearings, preliminary examinations, removal hearings, postindictment arraignments, pretrial conferences, and pretrial motions. H. R. Rep. No. 94-1609, at 7; see id., at 9.
Accord, S. Rep. No. 96-74, pp. 3, 6 (1979). But see H. R. Rep. No. 96-287, at 31-33 (dissenting views of Rep. Holtzman and Rep. Sensenbrenner).
“A misdemeanor is any offense for which the maximum term of imprisonment that may be imposed does not exceed one year. An unlimited fine may also be imposed.” Id,., at 17. Accord, 18 U. S. C. §3559(a) (1982 ed., Supp. V).
Losing civil litigants are entitled to appeal to the district court or directly to the court of appeals and to seek discretionary review before this Court. 93 Stat. 643-644, 28 U. S. C. §§ 636(c)(3)-(6). Convicted defendants may take an appeal as of right to the district court. 18 U. S. C. § 3402.
Whereas the 1968 Act had excluded certain minor offenses from the magistrate’s jurisdiction, the 1979 amendments relaxed this requirement, providing:
“The district court may order that proceedings in any misdemeanor case be conducted before a district judge rather than a United States magistrate upon the court’s own motion or, for good cause shown, upon petition by the attorney for the Government. Such petition should note the novelty, importance, or complexity of the case, or other pertinent factors, and be filed in accordance with regulations promulgated by the Attorney General.” 93 Stat. 646, 18 U. S. C. § 3401(f).
United States Department of Justice regulations require that in eases involving many of the offenses excluded in the 1968 Act, the “attorney for the government shall consult with the Assistant Attorney General having supervisory authority over the subject matter in determining whether to petition for trial before a district judge.” 28 CFR § 52.02(b)(2) (1988).
As amended, the statute states:
“Any person charged with a misdemeanor may elect, however, to be tried before a judge of the district court for the district in which the offense was committed. The magistrate shall carefully explain to the defendant that he has a right to trial, judgment, and sentencing by a judge of the district court and that he may have a right to trial by jury before a district judge or magistrate. The magistrate shall not proceed to try the case unless the defendant, after such explanation, files a written consent to be tried before the magistrate that specifically waives trial, judgment, and sentencing by a judge
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
sc_casedisposition
|
G
|
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.
LEWIS, COMPTROLLER OF FLORIDA v. BT INVESTMENT MANAGERS, INC., et al.
No. 79-45.
Argued January 15, 1980
Decided June 9, 1980
BlacKMUN, J., delivered the opinion for a unanimous Court.
Erwin N. Griswold argued the cause for appellant. On the brief were Eugene J. Celia and Franklyn J. Wollett.
John L. Warden argued the cause for appellees. On the brief were John E. Mathews, Jr., Stephen E. Day, and Vincent J. Rio III
Briefs of amici curiae urging reversal were filed by Erwin N. Griswold and James F. Bell for the Conference of State Bank Supervisors; and by J. Thomas Cardwell and Michael P. McMahon for the Florida Bankers Association.
John L. Warden and Robert D. Owen filed a brief for the New York Clearing House Association as amicus curiae urging affirmance.
Mr. Justice Blackmun
delivered the opinion of the Court.
This case concerns the constitutionality of two Florida statutes regulating the conduct of-investment advisory and trust services within that State. A three-judge United States District Court, convened pursuant to 28 U. S. C. § 2281 (1970 ed.), held that the statutes violate the Commerce Clause, U. S. Const., Art. 1, § 8, cl. 3, because in combination they discriminate against bank holding companies that operate principally outside Florida. It also held that such discrimination is not authorized by federal legislation regulating the interstate operations of bank holding companies. The case was brought here on direct appeal, see 28 U. S. C. § 1253, and we noted probable jurisdiction to resolve the substantial constitutional and statutory issues presented. 444 U. S. 822 (1979).
I
Appellee Bankers Trust New York Corporation (Bankers Trust) is a corporation organized under the laws of the State of New York. It maintains its principal place of business in that State. It is a bank holding company within the meaning of § 2 (a) of the Bank Holding Company Act of 1956, 70 Stat. 133, as amended, 12 U. S. C. § 1841 (a) (1976 ed. and Supp. II) (Act). Accordingly, it is subject to federal restrictions on the kinds of subsidiaries it may own or control. Upon authorization from the Board of Governors of the Federal Reserve System, however, it is permitted to own or control shares of any company the business of which is “so closely related to banking or managing or controlling banks as to be a proper incident thereto.” § 4 (c) (8) of the Act, 12 U. S. C. § 1843 (c)(8). By regulation, the Board has designated both the provision of investment or financial advice and the performance of certain trust functions as “closely related” business within the meaning of this statute. See 12 CFR §§ 225.4 (a)(4) and (5) (1979).
In 1972, the management of Bankers Trust decided to seek tijie Board’s approval for an investment management subsidiary to operate in Florida. On October 3 of that year, Bankers Trust filed a formal proposal for such a subsidiary, which it planned to operate from offices in Palm Beach. Appellee BT Investment Managers, Inc. (BTIM), was Bankers Trust’s intended vehicle for entry into the Florida market. It was incorporated under the laws of the State of Delaware as a wholly owned subsidiary on November 24, 1972. Three days later it qualified to do business in Florida. The application to the Board proposed that BTIM would provide “portfolio investment advice,” as well as “general economic information and advice, general economic statistical forecasting services and industry studies” to persons other than banks. See Complaint ¶ 7, App. 9-10, and appellant’s Answer ¶ 7, App. 19.
When. Bankers Trust filed its application with.the Board, certain Florida statutes restricted the ability of out-of-state bank holding companies to compete in the State’s financial market. At that time Fla. Stat. § 659.141 (1), added by 1972 Fla. Laws, ch. 72-96, § 1, and effective March 28, 1972, prohibited Bankers Trust from owning or controlling a bank or trust company located within the State; the same statute also prohibited it from owning businesses furnishing investment advisory services to local banks or trust companies. In addition, Fla. Stat. § 660.10 prohibited any corporation, other than a state-chartered bank and trust company or a national banking association located in Florida, from performing certain trust and fiduciary functions. Neither statute, however, directly prohibited an out-of-state bank holding company from owning or controlling a business furnishing investment advisory services to the general public. Thus, at the time Bankers Trust filed its application with the Board, it appeared that ownership of BTIM would not violate Florida law, although BTIM would be restricted in the types of financial services it could perform and the customers it could serve.
The reaction of the Florida financial community to Bankers Trust’s proposed investment subsidiary was decidedly negative. The State Comptroller, the Florida Bankers Association, and the Palm Beach County Bankers Association, Inc., all filed comments with the Board objecting to the Bankers Trust proposal. More importantly for present purposes, the state legislature was persuaded to take action. On November 30, 1972, shortly after BTIM had qualified to do business in the State, a special session of the legislature amended Fla. Stat. § 659.141 (1). That statute, which had been on the books only since March 28 of that year, was expanded to prohibit an out-of-state bank holding company from owning or controlling a business within the State that sells investment advisory services to any customer, rather than just to “trust companies or banks” in Florida, as the statute theretofore had read. This amendment took effect, without the Governor’s approval, on December 21, 1972. There is evidence that the amendment was a direct response to Bankers Trust’s pending application, and that it had the strong backing of the local financial community.
On April 26, 1973, the Board rejected Bankers Trust’s proposal on the ground that it would conflict with state law. Bankers Trust New York Corp., 59 Fed. Res. Bull. 364. The Board observed that the proposal contemplated de novo entry into the Florida investment management market rather than acquisition of an existing concern, and it noted that de novo entry ordinarily has a desirable procompetitive impact. Absent evidence of a contrary effect in this case, the Board intimated that it would have been favorably inclined toward the proposal. But it found that the December amendment to Fla. Stat. § 659.141 (1) "was intended to, and does, prohibit the performance of investment advisory services in Florida by non-Florida bank holding companies.” 59 Fed. Res. Bull., at 365. In view of its obligation to respect the dictates of state law, the Board found itself constrained to reject the proposal. See 12 U. S. C. § 1846; Whitney Nat. Bank v. Bank of New Orleans, 379 U. S. 411, 424-425 (1965).
Within six months of the Board’s decision, the two appellees filed this action seeking declaratory and injunctive relief. Count I of their complaint alleged that Fla. Stat. § 659.141 (1) “is not designed to promote lawful regulatory objectives, but is intended to shelter those organizations presently conducting an investment advisory business in Florida from competition by [BTIM].” Complaint ¶ 11, App. 11. The complaint alleged violations of the due process and equal protection guarantees of the Fourteenth Amendment, as well as violation of the Commerce Clause. Count II alleged similar constitutional defects as the result of the joint operation of §§ 659.141 (1) and 660.10. Appellees alleged that “[b]ut for the exist-énce of the challenged statutes,” Bankers Trust would seek authority from the Board to establish “a subsidiary trust company having a national bank charter or a Florida state charter” that would engage exclusively in one or more of the functions regulated by § 660.10. Complaint ¶ 21, App. 14-15. A three-judge court was convened pursuant to 28 U. S. C. § 2281 (1970 ed.), and the case was submitted for summary judgment on a stipulated set of facts.
The District Court, by a divided vote, initially dismissed the complaint without prejudice on the ground that it should abstain from decision under either Railroad Comm’n v. Pullman Co., 312 U. S. 496 (1941), or Burford v. Sun Oil Co., 319 U. S. 315 (1943). BT Investment Managers, Inc. v. Dickinson, 379 F. Supp. 792 (ND Fla. 1974). The United States Court of Appeals for the Fifth Circuit, however, reversed and remanded for consideration of the merits. 559 F. 2d 950 (1977).
On remand, the District Court held that the challenged portions of the two statutes violate the Commerce Clause. 461 F. Supp. 1187 (1978). Without reaching appellees’ due process and equal protection arguments, it found that the statutes under attack discriminate against interstate commerce. The court reasoned that § 659.141 (1) “erects an insuperable barrier to the entry of foreign-based bank holding companies, through their subsidiaries, into the Florida investment advisory market,” and that § 660.10 “similarly cordons off Florida trust companies from competition by out-of-state concerns.” 461 F. Supp., at 1196. It ruled that the statutes are “parochial legislation” that “must be deemed per se unconstitutional.” Ibid. Moreover, it held that the legislative purposes proffered by appellant, including a purported desire to curb anticompetitive abuses arising from agglomeration of financial power, failed to justify the discriminatory impact of the statutes.
Finally, the District Court held that the federal Bank Holding Company Act does not foster or permit the types of discrimination against out-of-state bank holding companies reflected in the Florida statutes. The court eschewed the argument that either § 3 (d) of the Act, 12 U. S. C. § 1842 (d), or § 7 of the Act, 12 U. S. C. § 1846, authorized the statutes in question. It recognized that § 3 (d) prohibits bank holding companies from acquiring banking subsidiaries in other States without local authorization. But it rejected the contention that this prohibition implicitly extends as well to related businesses, such as the providing of investment advice.
The court issued an order granting declaratory relief against both statutes but enjoining the enforcement of only § 659.141 (1) against appellees.
II
This appeal presents two distinct but related questions with respect to the validity of the challenged' Florida statutes. The first is whether the statutes, viewed independently of federal legislation regulating the banking industry, burden interstate commerce in a manner contrary to the Commerce Clause. The second is whether Congress, by its own legislation in this area, has created an area in which the States may regulate free from Commerce Clause restraints. Since there is no contention that federal legislation pre-empts the state laws in question, federal law becomes important only if it appears that the Florida statutes cannot survive without federal authorization. Thus, the second question becomes pertinent only if we reach an affirmative answer to the first.
These questions arise against a backdrop of familiar principles. The Commerce Clause grants to Congress the power “[t]o regulate Commerce... among the several States.” U. S. Const., Art. 1, § 8, cl. 3. Although the Clause thus speaks in terms of powers bestowed upon Congress, the Court long has recognized that it also limits the power of the States to erect barriers against interstate trade. See, e. g., Hughes v. Oklahoma, 441 U. S. 322, 326 (1979); Philadelphia v. New Jersey, 437 U. S. 617, 623 (1978); H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 534-538 (1949); Cooley v. Board of Wardens, 12 How. 299 (1852). This limitation upon state power, of course, is by no means absolute. In 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. See, e. g., Raymond Motor Transportation, Inc. v. Rice, 434 U. S. 429, 440 (1978); Great A&P Tea Co. v. Cottrell, 424 U. S. 366, 371 (1976). Where such legitimate local interests are implicated, defining the appropriate scope for state regulation is often a matter of “delicate adjustment.” Ibid., quoting H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S., at 553 (Black, J., dissenting). Yet even in regulating to protect local interests, the States generally must act in a manner consistent with the “ultimate... principle that one state in its dealings with another may not place itself in a position of economic isolation.” Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 527 (1935). However important the state interest at hand, “it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently.” Philadelphia v. New Jersey, 437 U. S., at 626-627.
Over the years, the Court has used a variety of formulations for the Commerce Clause limitation upon the States, but it consistently has distinguished between outright protectionism and more indirect burdens on the free flow of trade. The Court has observed that “where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected.” Id., at 624. In contrast, legislation that visits its effects equally upon both interstate and local business may survive constitutional scrutiny if it is narrowly drawn. The Court stated in Pike v. Bruce Church, Inc., 397 U. S. 137 (1970):
“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 142.
See also Hughes v. Oklahoma, 441 U. S., at 336; Hunt v. Washington Apple Advertising Comm’n, 432 U. S. 333, 353 (1977); Great A&P Tea Co. v. Cottrell, 424 U. S., at 371-372; Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 443 (1960). The principal focus of 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. See Hughes v. Oklahoma. 441 U. S., at 336; Best & Co. v. Maxwell, 311 U. S. 454, 455-456 (1940).
Ill
With these principles in mind, we first turn to § 659.141 (1). This statute has been the chief object of controversy, since it is the statute that prevents appellees from setting up their projected investment advisory business within Florida. The statute prohibits ownership of local investment or trust businesses by firms possessing two characteristics: a certain kind of business organization and purpose, whether it be as a bank, trust company, or a bank holding company; and location of principal operations outside Florida.
Appellant and the amici supporting his position argue that the District Court's analysis of § 659.141 (1) is flawed in three respects: First, the statute assertedly affects only matters of local character that have insufficient interstate attributes to bring federal constitutional limitations into play. Second, the District Court erroneously labeled the statute protectionist legislation and thus incorrectly relied upon the “per se rule of invalidity” identified in Philadelphia v. New Jersey, 437 U. S., at 624. Appellant argues that the statute should be treated as neutral legislation subject to the less stringent standards of Pike v. Bruce Church, Inc., supra, and he argues that it meets this test. Third, the District Court failed to accord proper significance, in appellant’s view, to the Bank Holding Company Act of 1956. Appellant argues that the Act grants authority to the States to prohibit out-of-state bank holding companies from owning local subsidiaries that provide bank-related services.
A
The first of these arguments needs only brief mention. We readily accept the submission that, both as a matter of history and as a matter of present commercial reality, banking and related financial activities are of profound local concern. As appellees freely concede, Brief for Appellees 17, n. 10, sound financial institutions and honest financial practices are essential to the health of any State’s economy and to the well-being of its people. Thus, it is not surprising that ever since the early days of our Republic, the States have chartered banks and have actively regulated their activities.
Nonetheless, it does not follow that these same activities lack important interstate attributes. An impressive array of federal statutes regulating not only the provision of banking services but also the formation of banking organizations, the rendering of investment advice, and the conduct of national investment markets, is substantial evidence to the contrary. We do not understand appellant to dispute the validity of these enactments, all of which rest primarily on Congress’ powers under the Commerce Clause. Indeed, appellant’s arguments under the Bank Holding Company Act assume the validity of federal regulation in this sphere. This Court has observed that the same interstate attributes that establish Congress’ power to regulate commerce also support constitutional limitations on the powers of the States. Philadelphia v. New Jersey, 437 U. S., at 622-623. For present purposes, it is clear that those limitations apply.
B
The contentions that the District Court erred by applying too stringent a standard in defining the limits of Florida’s regulatory authority, and that § 659.141 (1) is evenhanded local regulation, are more substantial. We nonetheless agree with the District Court’s conclusion that this statute is “parochial” in the sense that it overtly prevents foreign enterprises from competing in local markets.
The statute makes the out-of-state location of a bank holding company’s principal operations an explicit barrier to the presence of an investment subsidiary within the State. As Bankers Trust’s application before the Board itself indicates, it thus prevents competition in local markets by out-of-state firms with the kinds of resources and business interests that make them likely to attempt de novo entry. Appellant virtually concedes this effect, Brief for Appellant 59, and the circumstances of enactment suggest that it was the legislature’s principal objective.
Appellant argues, however, that the statute ought not to be declared per se invalid because it does not prevent all out-of-state investment enterprises from entering local markets. Investment enterprises that are not bank holding companies, banks, or trust companies either may own investment subsidiaries in Florida or may enter the state investment market directly by obtaining a license to do business. Furthermore, locally incorporated bank holding companies are subject to the same restrictions as their foreign counterparts if they maintain their principal operations elsewhere. Appellant thus analogizes § 659.141 (1) to the Maryland statute prohibiting local retail operations by vertically integrated petroleum companies that the Court upheld in Exxon Corp. v. Governor of Maryland, 437 U. S. 117 (1978). The statute, it is said, discriminates against a particular kind of corporate organizational structure more than it does against the origin or citizenship of a particular business enterprise.
The statute involved in Exxon flatly prohibited producers and refiners of petroleum products from opening or operating retail services within Maryland under a variety of corporate or contractual arrangements. Id., at 120, n. 1. It was enacted in response to perceived inequities in the allocation of petroleum products to retail outlets during the fuel shortage of 1973. Various oil companies, all of which engaged in production and refining as well as in sale of petroleum products, challenged the statute on a number of grounds. Among other arguments, they claimed that the statute violated the Commerce Clause because it discriminated against producers and refiners, all of which were interstate concerns, in favor of independent retailers, most of which were local businesses.
The Court rejected this contention. After holding that the statute served the legitimate state purpose of “controlling the gasoline retail market/’ id., at 125, the Court separately analyzed its effect on interstate commerce in the producing-refining and retailing ends of the petroleum industry. The Court concluded that the statute could not discriminate against interstate petroleum producers and refiners in favor of locally based competitors because, as a matter of fact, there were no such local producers or refiners to be favored. Ibid. For the same reason, it concluded that the flow of petroleum products in interstate commerce would not be reduced. Id., at 127. It also rejected a claim of discrimination at the retail level because the statute placed “no barriers whatsoever” on competition in local markets by “interstate independent dealers” that did not own production or refining facilities. Id., at 126. Despite the fact that the number of stations operated by independent dealers was small relative to the number operated by producer-refiners, the Court concluded that neither the placing of a disparate burden on some interstate competitors nor the shifting of business from one part of the interstate market to another was enough, under the circumstances, to establish a Commerce Clause violation. Id., at 126-127.
There are some points of similarity between Exxon and the present case. In the former, the statute in issue discriminated against vertical organization in the petroleum industry. Section 659.141 (1) similarly discriminates against a particular kind of conglomerate organization in the investment and financial industries. And the Maryland statute permitted some kinds of interstate competitors free entry into the local market, as does the Florida statute at issue here.
We disagree, however, with the suggestion that Exxon should be treated as controlling precedent for this case. Section 659.141 (1) engages in an additional form of discrimination that is highly significant for purposes of Commerce Clause analysis. Under the Florida statute, discrimination against affected business organizations is not evenhanded because only banks, bank holding companies, and trust companies with principal operations outside Florida are prohibited from operating investment subsidiaries or giving investment advice within the State. It follows that § 659.141 (1) discriminates among affected business entities according to the extent of their contacts with the local economy. The absence of a similar discrimination between interstate and local producer-refiners was a most critical factor in Exxon. Both on its face and in actual effect, § 659.141 (1) thus displays a local favoritism or protectionism that significantly alters its Commerce Clause status. See Philadelphia v. New Jersey, 437 U. S., at 626-627; Baldwin v. G. A. F. Seelig, Inc., 294 U. S., at 527.
We need not decide whether this difference is sufficient to render the Florida legislation per se invalid, for we are convinced that the disparate treatment of out-of-state bank holding companies cannot be justified as an incidental burden necessitated by legitimate local concerns. In the District Court and to some extent on this appeal, appellant and supporting amici have argued that the Florida legislation advances several important state policies. Among those that have been specifically identified are an interest in discouraging undue economic concentration in the arena of high finance; an interest in regulating financial practices, presumably to protect local residents from fraud; and an interest in mn.-yTmW™;r local control over locally based financial activities. We think that these alleged purposes fail to justify the extent of the burden placed upon out-of-state bank holding companies.
Discouraging economic concentration and protecting the citizenry against fraud are undoubtedly legitimate state interests. But we are not persuaded that these interests justify the heavily disproportionate burden this statute places on bank holding companies that operate principally outside the State. Appellant has demonstrated no basis for an inference that all out-of-state bank holding companies are likely to possess the evils of monopoly power, that they are more likely to do so than their homegrown counterparts, or that they are any more inclined to engage in sharp practices than bank holding companies that are locally based. Nor is there any reason to conclude that outright prohibition of entry, rather than some intermediate form of regulation, is the only effective method of protecting against the presumed evils, particularly when other out-of-state businesses that may be just as large or far-flung are permitted to compete in the local market. We conclude that these asserted state interests simply do not suffice to eliminate § 659.141 (l)’s apparent constitutional defect. Cf. Hunt v. Washington Apple Advertising Comm’n, 432 U. S., at 353-354; Great A&P Tea Co. v. Cottrell, 424 U. S., at 375-376.
With regard to the asserted interest in promoting local control over financial institutions, we doubt that the interest itself is entirely clear of any tinge of local parochialism. In almost any Commerce Clause case it would be possible for a State to argue that it has an interest in bolstering local ownership, or wealth, or control of business enterprise. Yet these arguments are at odds with the general principle that the Commerce Clause prohibits a State from using its regulatory power to protect its own citizens from outside competition. See H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S., at 638; Buck v. Kuykendall, 267 U. S. 307, 315-316 (1925); cf. Toomer v. Witsell, 334 U. S. 385, 403-404 (1948). In any event, the interest is not well served by the present legislation. The statute, for example, does not restrict out-of-state ownership of local bank holding companies. Nor, as appellant concedes, does it prevent entry by out-of-state entities other than those having the prohibited organizational forms. There is thus no reason to believe that the State's interest in local control, to the extent it legitimately exists, has been significantly or evenhandedly advanced by the statutory means that have been employed.
For these reasons, we conclude that the District Court did not err in holding that § 659.141 (1) directly burdens interstate commerce in a manner that contravenes the Commerce Clause’s implicit limitation on state power.
C
Ordinarily, at this point we would have reached the end of our inquiry. But in this instance appellant has another string to his bow: the contention that by Act of Congress the State has been given additional authority to regulate entry by bank holding companies into the local investment advisory market. Congress, of course, has power to regulate the flow of interstate commerce in ways that the States, acting independently, may not. And Congress, if it chooses, may exercise this power indirectly by conferring upon the States an ability to restrict the flow of interstate commerce that they would not otherwiseenjoy. See H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S., at 542-543; Prudential Insurance Co. v. Benjamin, 328 U. S. 408, 423-424 (1946); International Shoe Co. v. Washington, 326 U. S. 310, 315 (1945). It is appellant’s view that the Bank Holding Company Act of 1956, as amended, is enabling legislation of this very kind, and that it authorizes the restrictions on bank holding companies embodied in § 659.141 (1).
This argument rests on two provisions in the federal legislation. Section 3 (d) of the Act, 12 U. S. C. § 1842 (d), prohibits the Board from approving an application by a bank holding company to acquire “any additional bank” located outside the State in which the holding company has its principal operations, unless that acquisition is specifically authorized by the statutory law of the State in which the proposed acquisition is located. Section 7 of the Act, 12 U. S. C. § 1846, reserves to the States a continuing role in the regulation of bank holding companies. Appellant argues that either or both of these provisions authorize the State to prohibit out-of-state bank holding companies from acquiring local investment subsidiaries.
:i The Bank Holding Company Act of 1956 was enacted to accomplish two primary objectives. First, it was designed to prevent the concentration of banking resources in the hands of a few financial giants. Second, it was intended to implement a congressional policy against control of banking and nonbanking enterprises by a single.business entity., See S. Rep. No. 1095, 84th Cong., 1st Sess., 2 (195.5); Board of Governors v. First Lincolnwood Corp., 439 U. S. 234, 242-243 (1978). Underlying both objectives was a desire to prevent anticom-petitive tendencies in national credit markets. See S. Rep. No. 91-1084, pp. 2-3 (1970).
Congress sought to accomplish these twin goals through separate statutory provisions. Section 3 of the Act placed limitations on the creation of bank holding companies and their expansion within the banking field. Section 3 (a) required Board approval for such activities as formation of bank holding companies, acquisition of bank stock or assets by such holding companies or their subsidiaries, and merger of bank holding companies. Section 3 (c) specified criteria to be considered by the Board in determining whether to grant approval. Section 4 sharply curtailed acquisition of nonbanking enterprises. Section 4 (a) generally forbade future acquisition of nonbanking enterprises. What was then § 4 (c) (6), however, carved out an exception for companies “of a financial, fiduciary, or insurance nature” if the Board determined that they are “so closely related to the business of banking or of managing or controlling banks as to be a proper incident thereto.” 70 Stat. 137.
When this legislation was first proposed to the Senate, neither § 3 nor § 4 contained explicit limitations on interstate expansion by bank holding companies. See S. 2577, 84th Cong., 1st Sess., §§ 3, 4 (1955). But Senator Douglas introduced an amendment to § 3 prohibiting bank holding companies from expanding into banking across state lines. He argued that such an amendment was desirable in order to ensure that national banks would not use bank holding companies as mechanisms to evade state-law restrictions on branching of banks recognized and made applicable to national banks by the McFadden Act, 12 U. S. C. § 36. See 102 Cong. Rec. 6860 (1956) (remarks of Sen. Douglas). The Senate agreed to the amendment. A similar provision had been included in the companion bill introduced in the House of Representatives. See H. R. Rep. No. 609, 84th Cong., 1st Sess., 2-5, 15, 24 (1955). The “Douglas Amendment” emerged as § 3 (d) of the Act, the first of the two provisions on which appellant relies.
We conclude that § 3 (d) offers scant support for the portions of § 659.141 (1) subject to challenge in this proceeding. Preliminarily, it is doubtful that § 3 (d) authorizes state restrictions of any nature on bank holding company activities. The language of the statute establishes a general federal prohibition on the acquisition or expansion of banking subsidiaries across state lines. The only authority granted to the States is the authority to create exceptions to this general prohibition, that is, to permit expansion of banking across state lines where it otherwise would be federally prohibited. Furthermore, the structure of the Act reveals that § 3 (d) applies only to holding company acquisitions of banks. Non-banking activities are regulated separately in § 4, which does not contain a parallel provision. Even if § 3 (d) could be interpreted to authorize additional state regulation, ordinary canons of interpretation thus would lead to the inference that restraints so authorized could apply only to a holding company’s banking activities.
In contrast to § 3 (d), §7 of the Act does reserve to the States a general power to enact regulations applicable to bank holding companies. This section was intended to preserve existing state regulations of bank holding companies, even if they were more restrictive than federal law. See S. Rep. No. 1095, 84th Cong., 1st Sess., 22 (1955). But we find nothing in its language or legislative history to support the contention that it also was intended to extend to the States new powers to regulate banking that they would not have possessed absent the federal legislation. Rather, it appears that Congress’ concern was to define the extent of the federal legislation’s pre-emptive effect on state law. In response to criticisms of the provision on the ground that it might be interpreted to expand state authority, one Committee Report stated that it was intended “to preserve to the States those powers which they now have in our dual banking system,” yet “to make it clear that a State could not enact legislation inconsistent with the [Act] and therefore nullify its effect.” S. Rep. No. 1095, 84th Cong., 2d Sess., pt. 2, p. 5 (1956). Par from creating a new state power to discriminate between foreign and local bank holding companies, the legislative history evinces an intent to forestall such a broad interpretation. We therefore conclude that § 7 applies only to state legislation that operates within the boundaries marked by the Commerce Clause.
Since neither of these provisions authorizes state legislation of the variety contained in the challenged portions of § 659.141 (1), we agree with the District Court that appellant’s reliance on the Bank Holding Company Act is misplaced. The effects of the Florida statute on interstate commerce have not been permitted by Congress, and its Commerce Clause defects have not been removed. Therefore, the District Court’s injunction against enforcement of the statute must be sustained.
IY
This brings us, finally, to § 660.10. That statute prohibits all corporations except state-chartered banks and national banks having their operations in Florida from performing specified fiduciary functions. It does not purport to regulate the ownership of such institutions by bank holding companies. For the reasons stated below, we conclude that its constitutionality has been neither fully placed in issue nor fully determined by the District Court’s decision. We therefore vacate the judgment with respect to § 660.10 and remand for such further proceedings as may be necessary in light of this opinion.
As we have already noted, appellees’ complaint challenged the constitutionality of § 660.10 only insofar as it operated in conjunction with § 659.141 (1). The District Court followed the same approach, and it granted declaratory relief against § 660.10 on that basis. Jointly, of course, the statutes not only limit the kinds of corporations that may perform fiduciary functions within Florida, but also prevent out-of-state bank holding companies from owning such corporations as their subsidiaries. It was this joint effect that led the District Court to find that § 660.10 “cordons off Florida trust companies from competition by out-of-state concerns.” 461 F. Supp., at 1196. Having so found, the District Court did not address the constitutionality of § 660.10 standing alone. It did not consider, for example, which of the many functions regulated by § 660.10 were in issue, or whether any of the exceptions created by that statute might apply. Indeed, it refused to grant injunctive relief against that statute and ruled that any challenge to its enforcement was premature. 461 F. Supp., at 1201.
On this appeal the argument over the constitutionality of § 66Ó.10 has focused not on the concatenation of the two statutes, but on the power of a State under the Commerce Clause to require local incorporation as a condition of doing business in local markets. Cf. Railway Express Agency, Inc. v. Virginia, 282 U. S. 440 (1931). Because of the approach taken in the District Court, however, there has been no definitive ruling on this issue. The court may have touched obliquely on the question when it declared, on a motion for clarification, that a State may not wholly exclude foreign corporations from doing business in the State. See App. to Juris. Statement E2. But it made no specific determination whether § 660.10 would have such an effect, and it refused to speculate about the impact that enforcement of the statute might have upon appellees.
Nor is it clear that there is a present case or controversy with respect to the validity of the separate requirements imposed by § 660.10. As we have noted, appellees’ complaint does not expressly join battle on this issue. The facts of the case show,
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
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songer_treat
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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 determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America, Appellee, v. Ciprian GONZALEZ, Defendant-Appellant.
No. 929, Docket 86-1473.
United States Court of Appeals, Second Circuit.
Petition for Rehearing Submitted April 7, 1987.
Decided June 5, 1987.
Frederick H. Block, New York City, for defendant-appellant.
Maria T. Galeno, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Kenneth Roth, Asst. U.S. Atty., New York City, of counsel), for appellee.
Before PIERCE and PRATT, Circuit Judges, and LASKER, Senior District Judge.
The Hon. Morris E. Lasker, Senior Judge, United States District Court for the Southern District of New York, sitting by designation.
PER CURIAM:
Ciprian Gonzalez appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York by the Hon. Lloyd F. MacMahon upon Gonzalez’ plea of guilty to charges of possession and distribution of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Appellant contends that the district court erred (1) in refusing to grant his motion made pursuant to Fed.R. Crim.P. 32(d) to withdraw his guilty plea prior to sentencing and his counsel’s motion to be relieved and (2) in failing to comply with the requirements of Fed.R. Crim.P. 11 before accepting his plea.
On September 22, 1986, with an interpreter present, Gonzalez pleaded guilty to one count of an indictment alleging that he participated in the sale of the cocaine derivative “crack” in July 1986. According to the presentence report, the government contended that Gonzalez sold two vials of crack with a combined net weight of 0.40 grams to a Drug Enforcement Administration agent for $20. During the plea allocution, in accordance with Fed.R.Crim.P. 11(c), the district judge informed Gonzalez of the rights he was giving up by pleading guilty and explained the penalties that could be imposed. The judge stated with regard to the possible sentence:
Do you realize that if the court accepts your plea of guilty, the court has the power to sentence you to fifteen years in prison, fine you $250,000, and, if it sends you to prison, must impose a three-year special parole term to commence upon expiration of your prison sentence, and impose a $50 special assessment; do you understand that?
The judge also ascertained that Gonzalez understood the charges against him, and Gonzalez explained in his own words that he assisted a friend in making a crack sale. Although appellant’s description of his actions differed from the government’s version in that he did not recall personally passing the crack to the DEA agent, he did admit to participating intentionally in the transaction to earn some money. The judge made no inquiry into whether the plea was made voluntarily and was not the result of force, threats or promises.
On November 5, 1986, when the parties appeared before the district court for sentencing, Gonzalez’ attorney moved to be relieved on the ground that appellant’s statements to the probation officer, as documented in the presentence report, presented the attorney with a conflict of interest. The presentence report stated: “The Defendant maintains his innocence regarding the instant offense and claims he pled guilty on the advice of his attorney.” Gonzalez’ account of the events charged in the indictment, as related to the probation officer, also contradicted his sworn testimony to the court during his allocution. The judge denied the motion to be relieved, as well as a Rule 32(d) motion to withdraw the guilty plea, on the ground that at the time of his plea Gonzalez had been carefully interrogated to make certain he understood the nature of the charges against him, that he understood the consequences of pleading guilty, and that he was pleading because he was guilty of the crime charged and for no other reason. Sentencing was thereupon adjourned for reasons unrelated to the motions.
On November 12, 1986, when the parties reappeared before the district court for sentencing, Gonzalez’ attorney renewed the motion to be relieved as counsel, and in the alternative, the motion to withdraw the plea. Defense counsel stated that Gonzalez had informed him that Gonzalez had expected that as a first offender he would be sentenced to probation, that at the time he pleaded guilty he did not know that he could go to jail, and that he did not remember his counsel telling him he could go to jail. Specifically, defense counsel stated: “[W]e now have a defendant who additionally says that in my preparation of him I basically told him that he was guaranteed probation.” Gonzalez also represented through defense counsel that he either did not remember that during the allocution the judge had told him he could be sentenced to jail or did not understand the judge’s statements. The judge denied both motions and sentenced Gonzalez to a ten-year term of imprisonment to be followed by a three-year special parole term and imposed a $10,000 fine. Gonzalez is serving his sentence.
Appellant claims on his petition for rehearing that his plea must he vacated because the district judge failed during the plea allocution to inquire of Gonzalez, as required by Fed.R.Crim.P. 11(d), whether any promises had been made to him and to inform Gonzalez, as required by Fed.R. Crim.P. 11(c)(1), about the effect of any special parole term that might be imposed.
(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole term and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense;
In United States v. Journet, 544 F.2d 633 (2d Cir.1976), we examined Congress’ 1975 amendments to Rule 11 and called for strict compliance with the rule’s specific provisions.
In reviewing a district court’s compliance with Rule 11, we can no longer accept as sufficient general statements or inquiries by the district judge on the theory that when construed in the light of surrounding circumstances they meet the rule’s requirements. We now hold that, as a minimum, before accepting a guilty plea each district judge must personally inform the defendant of each and every right and other matter set out in Rule 11. Otherwise the plea must be treated as a nullity.
Id. at 636. Joumet involved the district judge’s failure to advise a defendant of the maximum possible parole term that could be imposed, of his right to the assistance of counsel at trial, that a plea of guilty waived his right against self-incrimination, that no trial would be held if the guilty plea were accepted, and that he could be prosecuted for perjury if he made untrue statements under oath at the allocution. See id. at 634-35; Fed.R.Crim.P. 11(c)(1)-(5).
Two later decisions of this court appeared to relax the strict rule announced in Journet. In United States v. Michaelson, 552 F.2d 472 (2d Cir.1977), the court passed over the claim that the defendant was not advised as required by Rule 11(c)(5) that statements made under oath during the allocution could be the basis for a perjury prosecution in light of the fact that the defendant was not put under oath before questioning about his guilty plea. Id. at 477 (citing Journet, 544 F.2d at 637 n. 6). The Miehaelson court also held that the failure to advise the defendant under Rule 11(c)(3) of his right not to be compelled to incriminate himself at trial did not require the setting aside of his guilty plea in circumstances in which trial had already begun and it seemed “highly unlikely that [Michaelson’s] lawyer would not have advised Miehaelson of his right not to incriminate himself.” Id. The court took pains, however, to limit the case to its facts and stated: “Our decision therefore is not to be interpreted as overruling Joumet in any respect.” Id. at 477-78.
The second decision which appeared to signal a falling away from the strict rule was United States v. Saft, 558 F.2d 1073 (2d Cir.1977). In Saft the court treated the claimed Rule 11(c)(5) violation as inconsequential, as it had in Miehaelson. Id. at 1079. As to the failure to advise the defendant as required by Rule 11(c)(3) that he would have the right to the assistance of counsel at trial, the court found that the defendant could not have had any doubts on that score in circumstances in which counsel had already been appointed for him and the record revealed that he fully expected such representation to continue through trial. Id. at 1080. As to two other claimed violations of Rule 11, the Saft court found there was compliance and stated that “the Rule does not say that compliance can be achieved only by reading the specified items in haec verba,” id. at 1079.
Both the Saft and Michaelson cases involved Rule 11 inquiries that were conducted by district judges before Joumet was decided, and the opinions in both cases note this fact. See Saft, 558 F.2d at 1081; Michaelson, 552 F.2d at 477. Moreover, we have made clear that strict compliance with Rule 11 would in the future be enforced:
There should be no doubt after Journet that on a direct criminal appeal there will be little room for minimizing the effect of a failure to comply with Rule 11. Our recent decision in United States v. Michaelson probably represents the limit of how far we should go in that direction on a direct appeal. The policies behind Rule 11 are important and should be strictly enforced. When a district judge has failed to do so, allowing a defendant to replead will not ordinarily directly clash with society’s interest in enforcing the penal laws. Witnesses in most cases will still be available. The price of a short delay and some extra expense is a modest one to pay to correct the error of a government official (a district judge).
Del Vecchio v. United States, 556 F.2d 106, 109 (2d Cir.1977) (citations omitted); see also Soft, 558 F.2d at 1082 n. 10 (“[W]e do not believe we are here going further than Michaelson, and the problem will shortly disappear as the teachings of Journet are taken to heart.”).
The failure of the district court in this case to inquire of Gonzalez before accepting his guilty plea whether his plea was voluntary and “not the result of ... promises apart from a plea agreement,” as required by Rule 11(d), does in our view violate the prophylactic rule established for this circuit by Joumet. Appellant raises a question of promises made to induce his plea by asserting that his attorney told him that he was guaranteed a sentence of probation. This claim was brought out in connection with Gonzalez’ sentencing on November 12, 1986, and was viewed seriously enough by Gonzalez’ attorney to precipitate a renewal of his motions to be relieved as counsel and for withdrawal of the plea.
In this case the violation of Rule 11 was not a technical failure to question the defendant in the particular language of the Rule, but rather the absence of any inquiry at all on the subject. As we see it, there are three major purposes of the Rule 11(d) requirement which make it necessary that its provisions be faithfully observed. The first is to make certain that the plea is indeed voluntary; the second, to disabuse the defendant of any misconception he may have that anyone but the court has the authority to determine what his sentence will be; and third, to preserve the integrity of the plea by eliminating the basis for a later claim by the defendant that the plea was defective.
We are not suggesting that in this case appellant’s experienced and well-regarded counsel would have made promises to his client as to the outcome of his plea. What is possible, however, is that chance remarks about a court’s giving some credit for a plea of guilty or about the importance to a court of a defendant’s first offender status may have been misconstrued by appellant to be an assurance that he would not be sentenced to prison. This case presents precisely a situation in which a defendant in pleading guilty may well have mistakenly relied — for whatever reason: confusion, language barrier, stress — on a promise which a proper allocution could have uncovered. It is for this reason that it is important for the court to flush out any discussions that have occurred regarding the possible sentence a defendant may receive and to dispel any belief a defendant may have that any promise or promise-like representation made to him by anybody is binding on the court. Such questioning by the district court is particularly important when dealing with a defendant like Gonzalez. There is nothing in Gonzalez’ circumstances that would lead one to believe that this non-English speaking first offender certainly knew that no one, not even his attorney, could make him a binding promise of a non-custodial sentence.
The government contends that Rule 11(h), the harmless error provision incorporated in Rule 11, mandates affirmance of appellant’s conviction. The government’s position must be rejected. To sanction such a departure as is involved here on a harmless error theory would undercut the value of Rule 11 prescriptions. As discussed above, mistaken reliance by appellant upon misunderstood representations of counsel regarding the sentence to be imposed was a real possibility here. Nor does the failure to make a Rule 11(d) inquiry in this situation appear to be the kind of Rule 11 violation that the Advisory Committee on Rules considered might constitute harmless error when it proposed the 1983 amendments adding subdivision (h). The Notes of the Advisory Committee illustrate harmless error situations with examples such as “where the judge’s compliance with subdivision (c)(1) was not absolutely complete, in that some essential element of the crime was not mentioned, but the defendant’s responses clearly indicate his awareness of that element,” or “where the judge’s compliance with subdivision (c)(2) [sic] was erroneous in part in that the judge understated the maximum penalty somewhat, but the penalty actually imposed did not exceed that indicated in the warnings.” See Notes of Advisory Committee on Rules, 18 U.S.C., App.-Rules of Criminal Procedure, Rule 11 at 452 (Supp. I 1983) {“Advisory Committee Notes ”). No comparable circumstance is presented here.
Accordingly, the guilty plea must be vacated and the defendant given the opportunity to plead again to the indictment.
Appellant also contends in his petition for rehearing that the district judge failed to comply with Rule 11 in that he did not inform Gonzalez of “the effect of any special parole term,” as specifically required by subdivision (c)(1). Although the judge did explain to Gonzalez that a mandatory minimum three-year special parole term would commence upon expiration of any prison sentence imposed, he did not inform Gonzalez of the other characteristics of a special parole term as described in 21 U.S.C. § 841(c).
The government may be correct in its argument that the judge’s explanation captured the essential difference between ordinary and special parole. Nevertheless, we think that in the future a defendant ought also to be told that if the terms and conditions of the special parole are violated, he may be required to serve a further term of imprisonment equal to the period of the special parole, with no credit for time already spent on special parole. While we recognize that a description of the effect of a special parole term complicates the plea allocution, fairness — as well as the express terms of Rule 11(c)(1) — requires that a defendant be informed of the potentially grave consequences of special parole.
We have considered appellant’s other arguments, raised on his initial appeal, and find them to be without merit. Appellant’s contention that the district court erred in denying his Rule 32(d) motion to withdraw his guilty plea prior to sentencing and in denying his attorney’s motion to be relieved as counsel are rejected because neither decision constituted an abuse of discretion under the circumstances. Appellant correctly contends that the district court failed to comply with Rule 11(c)(1) in that Gonzalez was not informed during his plea allocution that a maximum special parole term of life could have been imposed; the error is harmless, however, because Gonzalez actually received no greater special parole term than the three-year minimum period about which he had been advised. See Fed.R.Crim.P. 11(h).
The judgment of conviction is vacated and the case remanded to the district court in order to permit Gonzalez to replead.
. Gonzalez’ judgment of conviction was affirmed by an Order issued by this panel on March 26, 1987. That Order is hereby vacated by the issuance of this memorandum opinion.
. Fed.R.Crim.P. 11(d) provides:
The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or his attorney.
. Fed.R.Crim.P. 11(c)(1) provides:
Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands, the following:
. We do not mean to suggest that appellant or his attorney ever called to the district judge’s attention that his Rule 11 inquiry was deficient in any respect.
. Fed.R.Crim.P. 11(h) provides:
Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.
. 21 U.S.C. § 841(c) provides:
A special parole term imposed under this section ... may be revoked if its terms and conditions are violated. In such circumstances the original term of imprisonment shall be increased by the period of the special parole term and the resulting new term of imprisonment shall not be diminished by the time which was spent on special parole. A person whose special parole term has been revoked may be required to serve all or part of the remainder of the new term of imprisonment. A special parole term provided for in this section ... shall be in addition to, and not in lieu of, any other parole provided for by law.
. The Advisory Committee on Rules gave an example of a circumstance in which its proposed harmless error provision, Rule 11(h), would apply by referring to the unpublished decision of the Court of Appeals for the Fourth Circuit in United States v. Peters, 588 F.2d 1353 (4th Cir.1978). In Peters the judge failed to comply fully with Rule 11(c)(1), in that he did not correctly advise the defendant of the maximum years of special parole possible, but did inform him that the minimum special parole term was three years, and the defendant thereafter was sentenced to 15 years imprisonment and a three-year special parole term. See Advisory Committee Notes at 451-52. Such prior decisions of this court as United States v. Palter, 575 F.2d 1050 (2d Cir.1978), which, contrary to Peters, vacated guilty pleas where the district judge failed to advise defendants they could be sentenced to maximum special parole terms of life even though the special parole terms actually imposed were no greater than the minimum mandatory special parole terms of which they were advised by the judge, are therefore no longer good law in light of the 1983 amendments to Rule 11 which adopted subdivision (h).
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_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.
MERRY MANUFACTURING COMPANY, Appellant, v. BURNS TOOL COMPANY and Economy Auto Stores, Inc., Appellees.
No. 20103.
United States Court of Appeals Fifth Circuit.
July 30, 1964.
Rehearing Denied Sept. 11, 1964.
Richard W. Seed, Seattle, Wash., and Hamilton Lokey, Atlanta, Ga., for appellant.
John Gibson Semmes, David H. Semmes, Washington, D. C., and Glover McGhee, Atlanta, Ga., for appellees.
Before TUTTLE, Chief Judge, and BROWN and BELL, Circuit Judges.
JOHN R. BROWN, Circuit Judge.
This is an appeal by the Patentee from a decree holding Claims 1, 2, 7, 8 and 9 of Merry Patent No. 2,614,474 invalid as well as uninfringed and also denying the claim for unfair trade practices. We affirm.
The device involved is a walking, motor-powered tiller by which the soil is turned by tined wheels that afford, together or separately, the traction as well. Claims 1 and 2 relate to a structure in which the sole contact with the ground is the tined wheels. The earth-moving, if not earth-shaking, contribution of Claims 7, 8 and 9 is the presence of a vertical, fixed tooth at the rear of the machine which the operator can depress into the ground simply by raising or lowering the handles. Its importance is not only to supply an additional plow, but, the Patentee contends, as the tooth is raised or lowered, the forward motion of the tiller is correspondingly affected thus causing a deeper or shallower digging action.
Following extensive pretrial discovery, the case was fully tried on a record of over 800 pages of testimony coming from live swearers and depositions together with some 213 documentary éxhibits. As is so often so, the loser here urges credibility choices rejected by the trial Judge, but here as there, cf. Williams v. National Surety Corp., 5 Cir., 1958, 257 F.2d 771, at 773; O/Y Finlayson-Forssa A/B v. Pan Atlantic Steamship Corp., 5 Cir., 1958, 259 F.2d 11, 13, 1958 AMC 2070; Higgins, Inc. v. Hale, 5 Cir., 1958, 251 F.2d 91, 1958 AMC 646, this mistakes our function. So far as fact findings, express or implied, are challenged, they readily pass the muster of clearly erroneous. F.R.Civ.P. 52(a). The legal conclusions under attack must therefore be treated in the light of the fact findings thus accepted. Because of our limited role, the case is greatly simplified.
It is recognized by all that for Claims 1 and 2 to be effective, they must relate back to August 23, 1946, the date of application Ser. No. 692,595 filed jointly by Merry and Balfour as co-inventors. Relation back depends on whether Balfour was, or is, required to make a disclaimer, either formally as such or in some other suitable way, to indicate substantively that he is not asserting any right to any part of the invention covered by the issued patent.
Because of the one-day tardiness of the Patentee’s then solicitor in responding to an Action of the Examiner, the initial application of Merry-Balfour application was abandoned as of October 10, 1949. Merry’s sole application was filed April 25,1949 (see note 3, supra). Thus, two of the procedural requirements of § 120, 35 U.S.C.A. § 120, were satisfied, one being that the subsequent application “contain a specific reference to the earlier filed application,” the other being that the later application was “filed before the patenting or abandonment of or termination of proceedings on the first application * * The controversy turns on whether there was, or may now he, compliance with the third requirement that the “invention” must be “disclosed in the manner provided by the first paragraph of section 112 * * * in * * *” the earlier “application previously filed * * * by the same inventor * * Of course the answer to this critical question is complicated by the fact that the initial application was by .joint inventors thus bringing into play '§§ 116 and 256.
„ . , , „ Ba four has not disclaimed and the Court has found that he will not, and, in any event, could not since the omission of his name was not _ by error - * * without deceptive mention * * Consequently for Merry to get the earlier filing date, he must establish that no character of disclaimer, formal or sub stantive, by Balfour was required. He attempts to do this by asserting the legal proposition that disclaimer of an appar- ..... , . , . . ent joint inventor is required only as to .... 7 . j . .. a joint invention claimed m the earlier .... r ,7 , ,T ... application. In other words, if the joint . .. . . jt. x7 - invention is disclosed but not claimed m t x* •, • . the earlier application, no disclaimer is . -essential.
We think the District Court was cor-red in rejecting this argument. This conclusion is supported by a number of cases, and the Patentee’s reading of some of them and efforts to distinguish others, we find to be unpersuasive. In re Roberts, D.C.Cir., 1920, 263 F. 646; In re Perrin, 3 Cir., 1944, 142 F.2d 277; In re Strain, 3 Cir., 1951, 187 F.2d 737; In re Schmidt, CCPA, 1961, 293 F.2d 274; Shreckhise v. Ritchie, 4 Cir., 1947, 160 F.2d 593. The subject matter of Claims 1 and 2 in the issued patent included to a substantial extent' matters disclosed although not claimed, in the earlier joint Merry-Balfour application. Consequently, the patent is invalid for failure to inclu(Je Balfour as a joint inventor, § u aRd there being R0 discIaimer; formal or Qne of substantive equivalence demonstrating. to the Court that Balfour was not> or could not, be asserting any rights ^ the subjeet matter of the subsequent aM,licati sucb tetative invaiidity is no^ overcome *
w , , To b? sure’ § 256 expressly recognizes that misjoinder or nonjoinder does not inevitably “invalidate a patent. The ... ^ ,. patent is unenforceable until corrective \ steps are taken. But if, as is the case , ^ ,. , / , , here, correction cannot be made because ’ . . . 7 ,, under controlling principles, the omis- . , m £ sion was not by error” the unenforce- ..... . . I • ability ripens into invalidity.
As to Claims 7> 8 and 9 dates are ajso critical. The application was filed April 25,1949. The District Court found these Claims invalid because more than one year prior to such date there was a public use and sale of the invention. 35 U.S.C.A. § 102(b).
In 1947 Merry engaged in negotiations with Siedelhuber Iron and Bronze Works Company of Seattle, Washington, concerning the manufacture of the tiller. Upon consummation of the agreement in January 1948, Seidelhuber undertook experiments with the Balfour-Merry device. As disclosed in the abandoned application and in its early embodiments this Balfour-Merry machine had a coaxial drive. At the risk of over-simplification, this may be briefly described. There were four tined rotors. The tines -of the inner two were longer and were mounted on a stub shaft which revolved around the shaft on which the outer rotors were mounted. The outer rotors were slightly shorter. The two sets of shafts were separately connected to the power takeoff reduction gears. The result was that in operation the inner, longer-tined, rotors operated slower. This had the effect, in part, of acting as a sort of brake on the machine while the fast-turning tined rotors cultivated.
In their experiments with the Balfour-Merry coaxial drive machine, the Seidel-hubers found it to be difficult if not dangerous to operate because of lack of control. They set about to improve it by adding a brake tooth or fixed plow at its rear end. In the early spring of 1948, and specifically as early as March 1948, sales of these improved garden tillers were made by Seidelhuber. It is uncon-tradicted that several sales of these tillers having coaxial drive and the brake tooth control device developed by Seidelhubers were made by them more than one year prior to the application of April 25, 1949. It was on this basis that the Court found the patent invalid under § 102. The Court also found as a fact that the idea of using a vertical plow at the rear of the machine to improve operation and to achieve better control was wholly that of the Seidelhubers. Consequently, since it is the Patentee’s contention that this is one of the significant contributions, the Court concluded that patent is invalid for the additional reason that Merry “did not himself invent the subject' matter sought to be patented.” 35 U.S.C.A. § 102(f).
The Patentee does not really challenge the actual sale of these machines at a time more than a year prior to the application. Its theory, as we understand it, is that Claims 7, 8 and 9 do not “read on” these structures and this device. This sets in train the familiar but unuseful bootstrap-question-begging maxim that that which would not infringe if later, does not anticipate if earlier. This, they argue, is important because the “public use” or “public sale” under § 102 (b) must be of “the very invention patented.” Goodwin v. Borg-Warner Corp., 6 Cir., 1946, 157 F.2d 267, 272.
They seek to distinguish these 1948 Seidelhuber tillers from the patented structure on two principal but related grounds, one as a matter of physical operating characteristics, and the other as a question of claims construction.
As to the operational aspects, the Pat-entee insists that as disclosed in the patent, the function of the vertical plow at the rear is to supply a braking effect thus tending to drive the cultivating tined rotors into the soil. In contrast to claims 7-9, it is insisted that in the Seidelhuber machine this was supplied by the coaxial drive with the inner slower moving tined rotors furnishing the braking effect. Consequently, it is urged, the real reason for the Seidelhubers putting in the rear vertical tooth was merely to cultivate or work the earth in the relatively wide space between the earth-working tined exterior rotors. In the Patentee’s ap-proaeh, the use of the vertical plow eliminates the necessity for the coaxial drive with two sets of tined rotors.
Then, in approaching it from a question of claim construction in the light of these asserted operating characteristics, the Patentee contends that the Seidel-huber structure is not the one disclosed by Claims 7, 8 and 9 for two reasons. The first is that Claims 7, 8 and 9 describe a direct drive, not' a coaxial drive, and second (or perhaps as a part of this) the Seidelhuber machine could not meet the limitation of Claims 7, 8 and 9 that “said wheel and brake tooth means [are so] arranged to provide the entire ground-engaging support for the cultivator.” (See the italicized portion of Claim 7, note 2, supra.)
We agree with the District Judge that Claims 7, 8 and 9 cover a coaxial model similar to that of Seidelhuber as as well as the later perfected Merry direct drive model. In its reply brief, Patentee categorically “agrees” that “claims 1 and 2 * * -» read on a coaxial drive machine * * *.” Claims 1 and 2 speak in terms of means “for transferring power from the upper shaft to the lower shaft” with axially aligned earth-working wheels “which are driven by the lower shaft” (see note 1, supra). This is substantially identical with the language in Claim 7 which speaks of “axially-aligned tined earth-working wheels” which are “driven by the lower shaft”. If, as the Patentee recognizes, the singular “shaft” can encompass a coaxial drive made up literally of two “shafts,” it does no offense to like literal language of Claims 7. 8 and 9 to construe them broadly enough to cover both direct and coaxial drives. This is but a recognition of a principle frequently expounded, often repeated, that patent construction is seldom a matter of pure literalism. U.S. Industries, Inc. v. Otis Engineering Corp., 5 Cir., 1960, 277 F.2d 282, 287; Inglett & Co. v. Everglades Fertilizer Co., 5 Cir., 1958, 255 F.2d 342.
Of course once the conclusion is reached that the Claims 7, 8 and 9 encompass coaxial as well as direct drive, the concluding clause offers no problem. The term “said wheels” refers to the tined earth-working wheels which, for a direct drive, would be two, and for a coaxial drive would be four — namely two interior and two exterior wheels. In the Seidelhuber machine, the entire ground-engaging support for the whole apparatus was the four wheels (two interior and two exterior) and the brake tooth at the rear. In the Merry direct drive machine, the entire ground engaging support is the two tined wheels and the brake tooth at the rear.
The result is that the Seidelhuber machines of 1948 come within the “invention” described in Claims 7, 8 and 9. This precipitates the ban of § 102(b) forbidding the patenting of “an invention” which “was * * * in public use or on sale” more than a year prior to the application.
This leaves only the additional claim for unfair trade competition. The District Court recognized that the Defendant-Appellee in certain advertising and sales material had used terminology, devices, or descriptives which were those of the Merry machine and equipment. But the Court also found that this was not a purposeful thing done with the intent to deceive or to palm off the Burns product as that of Merry. There is no significant controversy about the applicable principles of law either here or below. It all' turns on factual evaluations. Whether the Judge might have arrived at different conclusions or whether we might have were it before us initially is of no significance. His fact findings are supportable, F.R.Civ.P. 52(a). Affirmance of this phase of the case will have no substantial effect so far as the protection of whatever business-trade rights the Patentee might have in the future. Patent law, as such, no longer constitutes any stumbling block to Burns. But the unsuccessful Patentee has full redress, •equitable or legal or both, for any transgressions of trade and competitive practices followed by Burns which violate accepted applicable principles of controlling state or federal law.
Affirmed.
. Claim 1 is typical:
“1. A walking cultivator comprising a frame providing a laterally space pair of longitudinal frame members, a drive housing secured between the frame members and extending above and depending below said members, laterally extending shafts journal-mounted in the upper and lower ends of the drive housing, a power unit mounted on said frame members forwardly of the drive housing, means for transferring power from the power unit to the upper said shaft, and means in the drive housing for transferring power from the upper shaft to the lower shaft, axially aligned earth working wheels driven by the lower shaft at opposite sides of the drive housing and each adapted to perform both tractive and tilling functions, the depending portion of said drive housing having a narrow width between its lateral faces.”
. Claim 7 is typical:
“7. A walking cultivator comprising a frame providing a laterally spaced pair of longitudinal frame members and a rearwardly extending control handle, a drive housing secured between the frame members and extending above and de* pending below said members, laterally extending shafts journal-mounted in the upper and lower ends of the drive housing, a motor mounted on said frame members forwardly of the drive housing, means for transferring power from the motor to the upper said shaft, means in the drive housing for transferring power from the upper shaft to the lower shaft, axially-aligned tined earth working wheels driven by the lower shaft at opposite sides of tbe drive bousing and each adapted to perform both tractive and tilling functions, and brake tooth means depending from the frame rear-wardly of the said wheels and adapted to be urged into the ground to various depths of downward pressure exerted on the control handle while the cultivator is being steered to create a variable braking force whereby the power to the wheels is selectively apportioned between the said tractive and tilling functions thereof, said wheels and bralce tooth means being arranged to provide the entire ground-engaging support for the cultivator.” (Emphasis supplied.)
. Patent 2,614,474 issued October 21, 1952, on the sole application of Clayton B. Merry, dated April 25, 1949, Serial No. 89421. In the opening paragraph of the specifications, the patent as allowed stated: “This application is a continuation-in-part of my abandoned application. Ser. No. 692,595, filed August 23, 1946.”
. 35 U.S.C.A. § 116: “When an invention is made by two or more persons jointly, they shall apply for patent jointly ■and each sign the application and make the required oath * * *.
“Whenever a person is joined in an application for patent as joint inventors •through error, or a joint inventor is not ■included in an application through er■ror, and such error arose without any ■deceptive intention on his part, the Commissioner may permit the application to be amended accordingly, under such terms as he prescribes.”
.35 U.S.C.A. § 258: “Whenever a patent is issued on the application of per- .... , , ., sons as joint inventors and it appears . , f - that one of such persons was not m fact .... , , ,, , , . 7 •, j a joint inventor, and that he was included ...... jt .,. ns a joint inventor by error and without any deceptive intention, the Commis•sioner may, on application of all the parties and assignees, * * * issue a certificate deleting the name of tile erroneously joined person from the patent.
“Whenever a patent is issued and it appears that a person was a joint inventor, but was omitted by error and without deceptive intention on his part, the Commissioner may, on application of all the parties and assignees, * * * issue a certificate adding his name to the patent as a joint inventor,
“The misjoinder or nonjoinder of joint inventors shall not invalidate a patent, if such error can be corrected as provided in this section. The court before whlch 3ueh matte*. 13 cf ^ m f ef 011 may order correction of the patent on f. , , . * notice and hearing of all parties con- .. , ~ . . * t „ . cerned and the Commissioner shall issue .^ a certificate accordingly. *
. There is no contention that Claims 7, 8 or 9 under any theory come within the earlier joint application of Merry-Balfour of August 23, 1946.
. The Court also held that the claims were invalid for want of invention in view of the prior art.. 35 U.S.C.A. §§ 102(a), 103. In view of our disposition of the case, we do not reach this matter.
. Page 7 reply brief.
. Claim 2 speaks in terms of “axially aligned earth-working wheels” which are “driven by the lower shaft.”
. Claim 8 reads: “Axially-aligned tined earth-working wheels driven by the lower shaft,” as does Claim 9.
. This is the clause italicized in note 2, supra: “said wheels and brake tooth means being arranged to provide the entire ground-engaging support for the cultivator.”
. This also makes it unnecessary to pass upon the correctness of the trial Court’s holding of invalidity by reason of the prior art (see note 7, supra) and the further finding of noninfringement.
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_othadmis
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
Rafael RIVERA FERNANDEZ, Plaintiff, Appellant, v. Carlos CHARDON, etc., et al., Defendants, Appellees.
No. 80-1237
United States Court of Appeals, First Circuit.
Argued Feb. 3, 1981.
Decided May 8, 1981.
Sheldon Nahmod, Chicago, 111., with whom Hiram R. Cancio, Harry R. Nadal-Arcelay, Jaime R. Nadal-Arcelay, Blanca I. Mera-Roure, Jesus R. Rabell-Mendez and Cancio, Nadal & Rivera, San Juan, P. R., were on briefs, for plaintiff, appellant, Rafael Rivera-Fernandez, Angel L. ArzonMendez, Ramon A. Vega Cruz, Laura L. Santos-Roa, Angel L. Allende-Velazquez, Evelyn Irizarry-Escobar, Enrique Diaz-Maldonado, Jose D. Nieves-Rivera, Aida L. Sanchez De Negron, Herminia Ortiz-Ortiz, José R. Munoz-Rivera, Eduardo Tarafa-Gonzalez, Gladys Rosado-Acevedo, Roberto Velazquez-Nieves, Sara Velazquez-Concepcion, Cecilio Alvarez-Plajas, Enrique Rosado-Alverio, Julia Martínez Vda. De Calderon, Saquia Azize-Mawad, Isaias Torres-Sanchez, Miguel Alvelo-Rodriguez, Irma L. Baldoni De Valencia, and Manuel Rosas-Lebron.
Roberto L. Cordova, San Juan, P. R., with whom Brown, Newsom & Cordova and Ines Equia Miranda, San Juan, P. R., were on brief, for defendants, appellees.
Before CAMPBELL, BOWNES and BREYER, Circuit Judges.
This opinion disposes of appeals in the following additional cases: No. 80-1238, Angel L. Arzon Mendez v. Carlos Chardon, et al. No. 80-1245, Ramon A. Vega Cruz v. Carlos Chardon, et al. No. 80-1247, Laura L. Santos Roa v. Carlos Chardon, et al. No. 80-1249, Angel Luis Allende v. Carlos Chardon, et al. No. 80-1254, Evelyn Irizarry Escobar v. Carlos Chardon, et al. No. 80-1339, Enrique Diaz Maldonado v. Carlos Chardon, et al. No. 80-1340, Jose D. Nieves Rivera v. Carlos Chardon, et al. No. 80-1341, Aida L. Sanchez de Negron v. Carlos Chardon, et al. No. 80-1342, Herminia A. Ortiz-Ortiz v. Carlos Chardon, et al. No. 80-1343, Jose R. Munoz Rivera v. Carlos Chardon, et al. No. 80-1344, Eduardo Tarafa Gonzalez v. Carlos Chardon, et al. No. 80-1345, Gladys Rosado Acevedo v. Carlos Chardon, et al. No. 80-1392, Roberto Velazquez Nieves v. Carlos Chardon, et al. No. 80-1404, Sara Valezquez Concepcion v. Carlos Chardon, et al. No. 80-1506, Cecilio Alvarez Plajas v. Carlos Chardon, et al. No. 80-1507, Enrique Rosado Alverio v. Carlos Chardon, et al. No. 80-1508, Julia Martinez Vda de Calderon v. Carlos Chardon, et al. No. 80-1509, Saquia Azize Mawad v. Carlos Chardon, et al. 80-1510, Isaias Torres Sanchez v. Carlos Chardon, et al. No. 80-1511, Miguel Alvelo Rodriguez v. Carlos Chardon, et al. No. 80-1512, Irma I. Baldoni de Valencia v. Carlos Chardon, et al. No. 80-1513, Manuel Rosas Lebrón v. Carlos Chardon, et al.
CAMPBELL, Circuit Judge.
Each of these 23 cases raises the issue of when the statute of limitations began to run on an employee’s claim that he or she was wrongfully demoted or fired because of political affiliation: the precise question is whether the limitations period began upon receipt of advance notification of demotion or discharge, or whether it dated from the time the employee stopped working at the job from which he or she was removed.
The plaintiffs in these 23 cases were all employed during the 1976-1977 school year as non-tenured administrators in the Commonwealth of Puerto Rico Department of Education. The plaintiffs were all active members of the Popular Democratic Party which was in power in Puerto Rico in the fall of 1976. A gubernatorial election was held in that year, in which a candidate of the New Progressive Party was elected. In March 1977 the new governor appointed defendant Carlos Chardon as Assistant Secretary of Public Education in charge of personnel. Sometime between June 3 and June 17, 1977, each plaintiff received a letter advising him or her that “the appointment to the position you now occupy expires with the termination of the present school year.” The letters received by 20 of the plaintiffs indicated that they would be reinstated to tenured positions they had previously held as teachers or lower level administrators. The other three, who had not previously held tenured positions, were told that their employment with the Department would cease. Each of the 23 letters indicated a date, between June 30 and August 8, when the action would take effect. The plaintiffs responded, most within a few days of receiving the notice, by a letter to defendant stating that “I am not in agreement with your decision .... To this effect I have remitted copy of the same to the Puerto Rico Teachers Association so that said organization may instruct its Legal Division to take the necessary action.” The demotions and terminations all occurred as scheduled.
On June 19, 1978, one Jose Ortiz Rivera, another Department of Education employee who had suffered similar treatment, filed suit in the United States District Court for the District of Puerto Rico under 42 U.S.C. § 1983. Ortiz Rivera claimed that the action had been taken because of his political affiliation, in violation of the first and fourteenth amendments to the United States Constitution. He purported to represent a class of over 100 persons, including these 23 plaintiffs. Class certification was denied, and each of these plaintiffs then filed a separate complaint, making essentially the same substantive allegations. The district court dismissed all 23 complaints on the ground that they were barred by the one-year statute of limitations applicable to section 1983 actions under 31 L.P.R.A. § 5298(2).
On appeal, the parties are agreed that section 5298 is the applicable statute of limitations, and that the present actions were commenced, for limitations purposes, on June 19, 1978, when Ortiz Rivera filed his complaint. If the one-year limitations period began to run when plaintiffs received notice of demotion or discharge (in each case before June 19, 1977), the current actions are untimely (unless the statute was interrupted, see note 2, infra). However, if the limitations period began later, when the demotion or discharge took effect (in each case after June 19, 1977), the present cases are not time barred. We hold that plaintiffs’ cause of action accrued, and the limitations period began, on the date when the demotions or discharges took effect.
Since section 1983 fixes no limitations period of its own, federal courts in section 1983 actions apply the limitations period provided by state law for the most closely analogous type of action, along with any state tolling rules. Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). When the cause of action accrues, however, is a question of federal law. Rubin v. O’Koren, 621 F.2d 114, 116 (5th Cir. 1980); Briley v. State of California, 564 F.2d 849, 855 (9th Cir. 1977); Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975); Kaiser v. Cahn, 510 F.2d 282, 285 (2d Cir. 1974). Cf. Cope v. Anderson, 331 U.S. 461, 464, 67 S.Ct. 1340, 1341, 91 L.Ed. 1602 (1947) (federal law determines when cause of action accrued in suit by receiver of national bank to collect assessment from stockholder); Rawlings v. Ray, 312 U.S. 96, 98, 61 S.Ct. 473, 474, 85 L.Ed. 605 (1940) (same). In the instant cases, the district court held that a cause of action accrues “when plaintiff knows or has reason to know of the injury which is the basis of the action.” The court found that the plaintiffs knew of the harm when they received the letters more than one year before the suit was filed. The court relied on two federal cases, United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (medical malpractice claim against Veterans Administration under Federal Tort Claims Act) and Mitchell v. Hendricks, 431 F.Supp. 1295 (E.D.Pa.1977) (section 1983 claim by prisoner for injury resulting from denial of medical treatment). In both of these cases, the plaintiff had no reason to know of the physical harm underlying his claim until sometime after it had occurred. The rule of accrual at the time of notice therefore served to extend, rather than to shorten, the limitations period. Similarly, a rule based on notice was applied to extend the limitations period in Lavallee v. Listi, 611 F.2d 1129 (5th Cir. 1980) (prisoner injured by negligently performed medical procedure; limitations period began only when prisoner knew or should have known that procedure was the cause of his continuing symptoms); Briley v. State of California, 564 F.2d 849 (9th Cir. 1977) (section 1983 action for fraudulently induced plea bargain; limitations period began only when plaintiff discovered fraud or could have done so); Cox v. Stanton, 529 F.2d 47 (4th Cir. 1975) (section 1983 action for forced sterilization; limitations period began only when plaintiff learned that the operation was permanent); and Young v. Clinchfield Railroad, 288 F.2d 499 (4th Cir. 1961) (Federal Employer’s Liability Act action for disease resulting from exposure to toxic material; limitations period began only when disease diagnosed).
We are aware of only one case which has applied this rule prospectively, Bireline v. Seagondollar, 567 F.2d 260 (4th Cir. 1977), cert. denied, 444 U.S. 842, 100 S.Ct. 83, 62 L.Ed.2d 54 (1979). In that case a nontenured university instructor was notified in May 1970 that her contract would not be renewed at the end of the 1970-71 school year. Citing Cox v. Stanton and Young v. Clinchfield Railroad, the court held that the instructor’s cause of action under section 1983 had accrued when she received notice, even though her termination had not yet occurred. The court did not discuss the policies underlying the notice rule, nor did it explicitly consider whether those policies should properly be applied where notice precedes the challenged action.
In Egleston v. State University College at Geneseo, 2 Cir., 535 F.2d 752 (1976), the Second Circuit took the opposite view on similar facts. The plaintiff, a non-tenured faculty member, was notified in May 1972 that her contract, due to expire in June 1973, would not be renewed. In her suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the court held that June 1973 was the crucial date, since her “primary grievance ... is rooted in her discharge,” and “Appellant’s discharge was consummated only when she left the university — or, possibly, when a replacement was hired.” Id., at 755.
Four other circuits have indicated agreement with Egleston, although in none of these cases was the same issue directly presented for decision. Rubin v. O’Koren, 621 F.2d 114, 116 (5th Cir. 1980) (due process claim under section 1983 by discharged instructor); Kryzewski v. Metropolitan Government, 584 F.2d 802, 806 (6th Cir. 1978) (sex discrimination action under Title VII by discharged policewoman); Bonham v. Dresser Industries, 569 F.2d 187, 192 (3d Cir. 1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978) (age discrimination claim under 29 U.S.C. § 623); Moses v. Falstaff, 525 F.2d 92, 95 (8th Cir. 1975) (age discrimination claim under section 623). See also Greene v. Carter Carburator Co., 532 F.2d 125, 127 (8th Cir. 1976) (Title VII claim).
We think the court in Bireline, and the district court in the present cases, misconstrued the notice rule. In our view, that rule has developed as a safeguard against unfairness to plaintiffs who, through no fault of their own, are unaware of their injuries until after the tortious act occurs. In such cases, the rule operates to postpone the running of the limitations period in order to give the plaintiffs a reasonable time in which to act once they have learned that they have suffered harm. The notice rule does not, however, alter the general rule that no cause of action exists until an unlawful act has occurred. Tort law has not traditionally recognized a doctrine of “anticipatory breach” comparable to that in contracts.
The issue of when the cause of action accrues depends, we believe, on when the alleged unlawful act occurred. It is necessary, therefore, to identify the unlawful act. Where, as here, the claim is that an employment decision was made for a prohibited reason, it could be argued that the unlawful act was the making of the decision, rather than the implementation of it. But we think such a refined rule would depart too sharply from the understanding of ordinary people. The plaintiffs in these cases are complaining that they were demoted or discharged, not merely that a decision was made on a particular occasion, of which notice was then given, to take such action against them. Had the decision been made but not yet implemented, equitable relief might have been sought to forestall irreparable harm, but it is unlikely that plaintiffs would have sought or received damages until or unless the threatened action was consummated. The alleged unlawful act was revocable, incomplete and, for practical purposes, nonexistent until the actual demotion or discharge.
Moreover, important policies of judicial administration favor a rule based on the date of implementation. While the date of notice in the present cases was easily established, other cases would surely arise in which resolution of that question would require lengthy proceedings. Notice might be oral, or it might be ambiguously phrased, or it might be transmitted by one whose authority is subject to question. We see no value in requiring courts and parties to devote their resources to litigating the adequacy of notice, when the date of the action itself is easily determined. In saying this, we are aware that the Supreme Court has declined to reach out for an easily identified date when that date bears no genuine relationship to the act of which plaintiff complains. Compare Delaware State College v. Ricks, - U.S. -, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) (date of termination not sufficiently connected to the challenged denial of tenure), discussed infra. But where, as here, the date that is most closely related to the plaintiffs’ claim is also the date most easily identified, we think concern for adoption of the rule that best promotes certainty and eliminates litigation over technical niceties is well warranted.
After the district court’s decision of these cases, the Supreme Court decided Delaware State College v. Ricks, supra. Defendants contend that that decision compels affirmance here. We disagree. Ricks, a black Liberian instructor, was informed in June 1974 that the faculty of Delaware State College had voted to deny him tenure. In accordance with the school’s usual practice, he was thereafter granted a one-year terminal contract, after which his employment with the school ended. In his suit alleging discrimination on the basis of national origin, Ricks contended that the limitations period under Title VII began to run only when he left the university in June 1975. The Supreme Court rejected this argument and concluded that Ricks’ cause of action had accrued when he was notified of the denial of tenure, in June 1974, and that his suit was therefore barred. The Court focussed on the allegations of Ricks’ complaint, which it found to charge discrimination in the denial of tenure, not in the discharge or any other subsequent action. The Court held that the denial of tenure was the “unlawful employment practice” within the meaning of Title VII, and that the date of that action was therefore the beginning of the limitations period. Three justices, in dissent, accepted the majority’s analysis (/. e., that denial of tenure, not discharge, was the unlawful employment practice) but placed the denial of tenure at a later date because of the later decision of an internal grievance board. Justice Stevens, alone among the justices, took the view that denial of tenure is analogous to advance notice of discharge. Based on that analogy, he argued that the date of discharge should control.
Refusal of the Ricks majority to adopt Justice Stevens’ analogy does not seem to us in any way to repudiate the precedents to which he sought to draw an analogy. The majority held merely that the denial of tenure in the academic setting is fundamentally different from a notice of discharge; it is a distinct and separate employment action, with important and far-reaching consequences for all aspects of the employee’s status. While denial of tenure is often followed by discharge, it is not always, and the consequences of denial of tenure are not dependent on its being followed by discharge. The Court found that Ricks’ complaint was based on the denial of tenure, which was effective immediately; it followed, therefore, that the limitations period began as soon as Ricks received notice of that action. Here, plaintiffs complain of discharges and demotions, not of any distinct event that occurred on an earlier date. The letters notifying them of the planned actions were notice and nothing more; they were not actions in themselves comparable to the denial of tenure.
To be sure, as we have said, one can argue that the notices themselves mirror the allegedly discriminatory motives of the defendants. One can also argue that a suit for injunctive relief might lie after receipt of notice (or, indeed, even before) to forestall threatened irreparable harm. Still plaintiffs’ quarrel is with their demotions and discharges — not with the notices themselves. No actual harm is done until the threatened action is consummated. Until then, the act which is the central focus of the plaintiffs’ claim remains incomplete. Such was not the situation in Ricks, where the denial of tenure was itself the completed act being challenged.
We conclude, therefore, that Ricks is inapplicable to these cases, and that the district court erred in dismissing the complaints.
The judgments of the district court are vacated and the cases are remanded for further proceedings not inconsistent herewith.
. The statute reads, in applicable part,
“The following prescribe in one year:
(D ...
(2) Actions to demand civil liability for grave insults or calumny, and for obligations arising from the fault or negligence in section 5141 of this title, from the time the aggrieved person has knowledge thereof.”
. This decision makes it unnecessary to reach plaintiffs’ alternative argument that the running of the limitations period was interrupted by their letters of protest, which they characterize as “extra-judicial claims” within 31 L.P. R.A. § 5303.
. Bireline is cited with apparent approval in Jackson v. Hayakawa, 605 F.2d 1121, 1127 (9th Cir. 1979), cert. denied, 445 U.S. 952, 100 S.Ct. 1601, 63 L.Ed.2d 787 (1980), but it is unclear whether this aspect of the holding in Bireline was actually applied in Jackson; the court there focussed on the date of notice, but the facts as stated in the opinion give the impression that the plaintiff had stopped working before he received notice of his termination.
. The Second Circuit followed this holding in Noble v. University of Rochester, 535 F.2d 756 (1976).
. We note that the Puerto Rico statute of limitations provides that actions prescribe within one year “from the time the aggrieved person has knowledge thereof.” See note 1, supra. No Puerto Rico authorities have been called to our attention, however, which suggest that this rule is meant to apply in cases, such as the present, where notice has been given in anticipation of the actual harm. Thus, while federal law would be controlling on accrual in any event, we are aware of nothing inconsistent with our analysis in the Puerto Rico statute and precedents. Indeed, the general federal accrual rule appears no different from that of Puerto Rico.
. We are not now faced with the question whether a mere threat of discharge or demotion, intended to chill the exercise of first amendment rights, would in itself give rise to a cause of action. Compare Elrod v. Bums, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Plaintiffs here complain not of a mere threat, but of consummated action.
. We do not read the complaints in these cases as charging a “continuing violation” in which the decision and the act were two consecutive elements. See Goldman v. Sears, Roebuck & Co., 607 F.2d 1014 (1st Cir. 1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1317, 63 L.Ed.2d 762 (1980). Rather, in our view each complaint charges a single act of discrimination which was consummated on the date that each plaintiff was discharged or demoted.
. Were the decision separated from its implementation by a greater time period than is involved here, and were the decision-making process more formal and definitive than appears here, the analogy to a tenure decision would be closer. But at least where the action taken follows quite soon after receipt of the notice, as happened here, we view the date of implementation as determinative for limitations purposes.
Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
PENNSYLVANIA R. CO. v. BRUBAKER.
Circuit Court of Appeals, Sixth Circuit.
April 12, 1929.
No. 5114.
Norman A. Emery, of Youngstown, Ohio (Harrington, De Ford, Huxley & Smith, of Youngstown, Ohio, on the brief), for plaintiff in error.
Lewis D. Houck, of Cleveland, Ohio (Payer, Minshall, Kareh & Kerr, of Cleveland, Ohio, on the brief), for defendant in error.
Before HICKS, HICKENLOOPER, and KNAPPEN, Circuit Judges.
HICKS, Circuit Judge.
This is a suit for personal injuries, controlled by the Federal Employers’ Liability Act. Act April 22, 1908, c. 149, § 1, 35 Stat. 65; title 45, c. 2, § 51, U. S. C. (45 USCA § 51). Plaintiff in error challenges the denial of its motion to direct a verdict. This is the only matter presented here.
Defendant in error, herein called plaintiff, was one of a crew of freight handlers, engaged in transferring a large and heavy crated electric motor from a freight car to the platform of a freight station. To accomplish this, plaintiff and his fellows had balanced the crate upon the steel plow and frame of an ordinary two-wheel freight truck, with the forward end of the crate extending some two or three feet beyond the plow of the truek. They had pulled the truck, thus loaded, to the station platform, and in the process of unloading they had lowered the front of the truek until the lower front edge of the crate rested on the platform. The crate was about 5 feet long, 3% feet wide, and 4 feet high, and, including the motor, weighed about a ton and a half. While it was in the position indicated, the crew undertook to .lower it to the platform in the following manner:
Three of them manually further elevated the upraised end while plaintiff and two others forced down the handles of the truck, lever fashion, thus assisting- the operation by raising the plow of the truek. When the raised end of the crate had thus been further elevated, those having hold of it held it suspended, while plaintiff and his fellows raised the truek handles and pulled the truek back somewhat, and again lowered the handles. As the men holding the crate gradually lowered it, the plow would again engage with the underside of the crate. The intention was to repeat this operation until the truek was entirely removed and the crate- safely lowered; but either while the truck was being placed, or had been placed, in position to again receive the crate when lowered, the handles of the truek being down, the crate came down with unexpected force upon the plow, forcing it down and the handles of the truck up against the plaintiff, to his injury.
It is clear that the injury resulted from the impact of the crate upon the plow, but this does not of itself justify the verdict in plaintiff’s favo-r. Proof of negligence upon the part of plaintiff’s fellow workmen is esr sential, and we can And no evidence of it. Plaintiff did not see the crate fall. Depner. one of the crew, attempted no explanation of it, and no other member of the crew was called as a witness. There is no proof that either of the men voluntarily released his hold upon the crate, as charged in the amended petition, or exerted less than his utmost physical strength to support it, or lowered it in any unusual manner, or was otherwise guilty of any fault.
If in the natural course of the- operation, the force of the impact of the crate upon the plow was greater than that anticipated .by plaintiff and his fellows, or if this was occasioned by withdrawing the truek somewhat further than was expected by those holding the crate, the result can be characterized as nothing more than a normal incident to the work in hand and as a risk assumed; but the impact of the crate upon the plow, standing alone, is not evidence that the men handling it were lacking in due care. Southern Railway Co. v. Derr, 240 F. 73, 74 (C. C. A. 6); Cincinnati,Co. v. So. Fork Co., 139 F. 528, 533, 1 L. R. A. (N. S.) 533 (C. C. A. 6). Upon the argument, counsel for plaintiff disclaimed the application of the doctrine of res ipsa loquitur. There must be some other fact or circumstance connected with the occurrence which will afford a substantial basis for an inference of negligence (cases supra), and, in our opinion, the record discloses no such evidence and justifies no conclusion beyond mere guess or conjecture. The record is entirely silent as to how or why, or with clearness when, the impact took place, or that it was not an ordinary incident of the work which the men were engaged in. For sueh lack of any substantial evidence to support plaintiff's petition, the motion for a directed verdict should have been sustained.
tfhe judgment is therefore reversed, and the case remanded for a new trial.
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_respond1_3_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the 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.
Peter W. COLM and John M. McIntyre, Appellants, v. Cyrus R. VANCE, Secretary of State, U.S. Department of State.
No. 76-1252.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 28, 1977.
Decided Nov. 18, 1977.
Murray J. Belman, Washington, D. C., for appellants.
Neil A. Kaplan, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, William D. Pease, and Ann S. DuRoss, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.
Richard B. Finn, Chicago, 111., filed a brief on behalf of the American Foreign Service Ass’n as amicus curiae urging reversal.
Suellen T. Keiner, Washington, D. C., filed a brief on behalf of the American Federation of Government Employees, AFL-CIO, as amicus curiae urging reversal.
Before TAMM, ROBINSON and ROBB, Circuit Judges.
Opinion for the court filed by TAMM, Circuit Judge.
Opinion filed by ROBB, Circuit Judge, concurring in the remand.
TAMM, Circuit Judge:
Section 633 of the Foreign Service Act of 1946, as amended, provides for the “seleetion-out” of Foreign Service officers who fail to be promoted to the next higher grade within a period of years prescribed from time to time by the Secretary of State. This provision, central to the constitutional issue raised on this appeal, reads in relevant part as follows:
(a) The Secretary shall prescribe regulations concerning—
(1) the maximum period during which any Foreign Service officer below the class of career minister shall be permitted to remain in class without promotion .
* * * * * *
(b) Any Foreign Service officer below the class of career minister who does not receive a promotion to a higher class within the specified period . . . shall be retired from the Service and receive benefits in accordance with the provisions of section 1004 of this title.
22 U.S.C. § 1003 (1970). Our appellants herein, two Foreign Service officers who were retired pursuant to this statutory “up- or-out” requirement, argue that their involuntary retirements contravened the procedural due process guarantee of the Constitution’s fifth amendment in that neither of them was afforded a hearing before an impartial tribunal to challenge certain adverse comments contained in confidential portions of their personnel files.
The factual background to this litigation is adequately portrayed in the district court’s memorandum opinion, reported below sub nom. Colm v. Kissinger, 406 F.Supp. 1250 (D.D.C.1975), and we need not repeat it here. For present purposes we need only note that the district court granted the Department of State’s motion for summary judgment on the ground that, since neither appellant had a legitimate claim of entitlement to continued employment in the Foreign Service beyond the maximum time-in-class then applicable (having remained in the Department’s employ to the end of that period), any constitutionally protected property interest in their government employment necessary to require due process protections had expired. See id. at 1255-56. We would agree with Judge Gasch’s articulate analysis of the property interest claims in this case and accordingly affirm his decision if it were not for our discovery of certain germane provisions of title 22 of the United States Code that make such a course impossible at this point and require us to vacate the award of summary judgment and to remand the case for further proceedings.
I
In this appeal we must decide whether appellants had a property interest such that their selection-out for non-promotion had to comport with some degree of procedural due process.
A person’s job under certain circumstances is indeed conceived of as his property in our prevailing jurisprudence and therefore cannot be taken away by the government without due process of law. See U.S.Const. amend. V; id. amend. XIV, § 1. The usual due process analysis, familiar at least since Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), has been two-staged: identifying the existence of a constitutionally protected property or liberty interest and then assessing the appropriate measure of procedural protection due. See, e. g., Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); cf. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (protected liberty interest in parole revocation). If the aggrieved party is determined to have no protected property interest (e. g., job tenure) or in liberty (stemming from the circumstances surrounding the termination of employment), due process itself does not apply, and the party is left with only those procedural protections established by or otherwise binding upon the employing agency. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
Our consideration of the property interest claim in the instant case must begin with the landmark companion cases of Roth and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), in which the Supreme Court reviewed the procedural due process claims of two state employees who had not been discharged during their contract periods, but rather had not had their employment contracts renewed for a subsequent term. In Roth, the Court held that a state university professor had no property interest in continued employment when he had been hired only for a fixed term of one academic year, had no formal tenure, and could point to nothing in state law or in his employment contract which might otherwise explicitly or implicitly entitle him to contract renewal. In so holding, the Court explained that a property interest sufficient to trigger due process protection may be created by statute, contract, or less formal “understandings”, but that something more objectifiable than a sanguine expectation is necessary.
To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is the purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.
Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.
408 U.S. at 577, 92 S.Ct. at 2709.
This judicial recognition that a protected property interest in one’s job may have its source in something less formal than a statute or contract was further refined in Perry, where the Court held that proof of a teacher’s allegations that he was entitled to tenure under an informal de facto tenure system fostered by the college in a faculty guide and other official guidelines would establish a property interest of which he could not be deprived without due process. 408 U.S. at 600-03, 92 S.Ct. 2694. Thus, Perry is especially pertinent to appellants’ property claims in that it demonstrates that the source of a protected property right might be implicit in the overall workings of a particular government employer. Cf. Morrissey v. Brewer, 408 U.S. at 479, 481-82, 92 S.Ct. 2593 (liberty “[ijmplicit in the system’s concern with parole violations . . . .”); Geneva Towers Tenants Organization v. Federated Mortgage Investors, 504 F.2d 483, 489-90 (9th Cir. 1974) (property interest in continued benefits of low-cost housing). It emphasized that
absence of such an explicit contractual provision may not always foreclose the possibility that a teacher has a “property” interest in re-employment.
* * * * * sfc
A teacher, like the respondent, who has held his position for a number of years, might be able to show from the circumstances of this service — and from other relevant facts — that he has a legitimate claim of entitlement to job tenure. Just as this Court has found there to be a “common law of a particular industry or of a particular plant” that may supplement a collective-bargaining agreement [citation omitted], so there may be an unwritten “common law” in a particular university that certain employees shall have the equivalent of tenure.
* * * * * *
We disagree with the Court of Appeals insofar as it held that a mere subjective “expectancy” is protected by procedural due process, but we agree that the respondent must be given an opportunity to prove the legitimacy of his claim of such entitlement in light of “the policies and practices of the institution.” [Citation omitted] Proof of such a property interest would not, of course, entitle him to reinstatement. But such proof would obligate . . . officials to grant a hearing at his request, where he could be informed of the grounds for his nonretention and challenge their sufficiency.
408 U.S. at 601-03, 92 S.Ct. at 2699-2700.
The district court in our present case concluded, and we agree, that a legitimate claim of entitlement must derive from some reasonably identifiable source apart from the mere expectancy or desire of the claimant. See Sims v. Fox, 505 F.2d 857, 861-62 (5th Cir. 1974) (en banc), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 678 (1975) . “It is simply our job to identify the choice that . . . [was] made, and to respect that decision.” Adams v. Walker, 492 F.2d 1003, 1009 (7th Cir. 1974) (Stevens, J., concurring); see Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) .
II
This case, as not infrequently occurs, has refined its focus as the litigation has progressed. Somewhere between the time appellants filed their main brief and their reply brief with this court, they reduced the thrust of their challenge to the “simple question whether a Foreign Service Officer is entitled to a fair opportunity to be promoted during his allotted time-in-class. . . . [This would] includfe] the right to see the contents of his performance file and to object to any erroneous or biased comments made therein.” Reply Brief for Appellants at 1. Thus, appellants no longer claim that they had a legitimate claim of entitlement to continued employment, see Brief for Appellants at 17-21, but rather urge us to find that the term-limited property interest they most assuredly did have throughout the time-in-class period included not only that quantitative aspect but a qualitative one as well which entitled them to a fair opportunity to achieve promotion. We may have come a long way since our decision in Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46 (1950), aff’d by an equally divided court, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352 (1951), but we are not yet ready to accept this invitation to travel further down the way of constitutionalizing every manner of government personnel decision.
As a general matter, of course, a government employee has no property entitlement to a promotion and therefore’ lacks any constitutional basis for requiring some kind of hearing upon a nonpromotion decision. See Schwartz v. Thompson, 497 F.2d 430, 432 (2d Cir. 1974). But cf. Bottcher v. Department of Agriculture & Consumer Services, 361 F.Supp. 1123, 1129 (N.D. Fla.1973), aff’d mem., 503 F.2d 1401 (5th Cir. 1974) (letters in personnel file impinge protected property interest by foreclosing or diminishing opportunities for promotion). There may, however, be situations where such an entitlement would exist as where “a promotion would be virtually a matter of right — for example, where it was solely a function of seniority or tied to other objective criteria . . .,” or where there is a “common law” of promotion sufficient to create a de facto “right” to promotion. Schwartz v. Thompson, 497 F.2d at 433. See also Koscherak v. Schmeller, 363 F.Supp. 932, 935-36 (S.D.N.Y.1973) (three-judge court), aff’d mem., 415 U.S. 943, 94 S.Ct. 1462, 39 L.Ed.2d 560 (1974); Olson v. Trustees of California State Universities, 351 F.Supp. 430, 433-35 (C.D.Cal.1972). What sets our present case apart from these other reported nonpromotion cases is that continuing nonpromotion throughout the prevailing time-in-class period eventuates in termination of employment under the up-or-out system rather than simply in continuing employment in the same grade.
Still, there is no such thing as a federal constitutional common law of property interests, see Bishop v. Wood, 426 U.S. 341, 349-50 n. 14, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), and we are scarcely inclined to fashion one, see generally Monaghan, The Supreme Court, 1974 Term — Forward: Constitutional Common Law, 89 Harv.L. Rev. 1, 44-45 (1975), much less to constitutionalize the “fairness” of promotion decisions. In determining whether appellants had the type of protected property interest they claim, we must look to the objective indicia supporting such a claim in a governing statute, regulation, or in agency-fostered policies or understandings. Their claim of an entitlement to a fair promotion opportunity must therefore be evaluated within the context of Department of State “law” as it existed throughout the relevant periods.
Appellants argue that both the character of their employment in the Foreign Service and the mutual and explicit understandings fostered by the Department gave rise to a property interest in their within-class employment sufficient to entitle them to a fair chance at promotion. See Reply Brief for Appellants at 2. However, their expression of various opinions about the “career” nature of their employment alone fails to identify the source of this claimed entitlement. Most of the points made in their briefs are largely irrelevant or trivial. Thus, for instance, that Foreign Service officers “generally intend to stay in the Service until retirement,” that they may not be dismissed “at the pleasure” of anyone, that the Department allegedly has, subsequent to their retirements, “virtually eliminated selection-out for time-in-class for middle level Foreign Service Officers,” or that they otherwise have a right to a hearing when selected-out for cause or as a result of low rankings, see Reply Brief for Appellants at 4-6, are insufficient indications they they enjoyed the type of property interest they claim. At most, these assertions only explain the genesis of their unilateral expectancies. Appellants have referred us to no statute, no regulation, or no internal statement of policy which we consider sufficient to support their claimed entitlement. This does not end the matter, however.
Ill
Though the parties have made no mention of them, there in fact do appear to be certain explicit substantive restrictions on the Department’s discretion in awarding promotions to its Foreign Service officers. Section 621 of the Foreign Service Act of 1946, for instance, expressly provides that “[p]romotion shall be by selection on the basis of merit.” 22 U.S.C. § 991 (1964) (emphasis added). Moreover, section 623 of the same Act authorizes the Secretary to establish selectipn boards “to evaluate the performance of Foreign Service officers, and upon the basis of their findings the Secretary shall make recommendations to the President for the promotion of Foreign Service officers.” Id. § 993 (emphasis added). There apparently is no disagreement that promotion is to be solely a function of relative performance. See 406 F.Supp. at 1252 (“Selection Boards are convened annually to review each officer’s performance file and to rank that officer in comparison with his peers on the basis of relative merit.”) (emphasis added); Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss or in the Alternative for Summary Judgment, Record Doc. 9 (“The mutual understanding between plaintiffs and the Department of State was not an expectancy of continuation of employment for an indefinite period but, rather, an annual review of their qualification for promotion by Selection Boards during the prescribed time-in-class period.”)
We believe that these provisions may provide a nonconstitutional basis for the relief appellants seek, at least in Mr. Colm’s case, inasmuch as they would appear to require promotion consideration based on performance and merit alone — a requirement presumptively inconsistent with inclusion and consideration of information in files, confidential or not, wholly unrelated to one’s performance. Furthermore, section 612 of the Act states:
Under such regulations as the Secretary may prescribe and in the interest of efficient personnel administration, the whole or any portion of an efficiency record shall, upon written request, be divulged to the officer or employee to whom such record relates.
22 U.S.C. § 987 (1964). The term “efficiency record” is defined as describing “those materials considered by the Director General to be pertinent to the preparation of an evaluation of the performance of an officer or employee of the Service.” Id. at § 981. Again, these provisions in the Department’s governing Act raise serious questions as to the practice of the agency in maintaining its parallel confidential “Development Appraisal Reports” during the period in question. See J.A. 35-36.
IV
We accordingly vacate the summary judgment awarded to the Government and remand the case back to the district court for determination whether these uncited sections of the Foreign Service Act provide a suitable basis for the relief appellants seek. In the event that the court holds that they do not, it should further determine the constitutional issue whether these provisions, though never referred to by appellants, nonetheless provide an actual, objective basis for their claim of entitlement to “fair” consideration of their “promotability” — a statutory entitlement to an evaluation based upon merit so “inextricably intertwined” with their continuing employment that it creates a protected property interest necessitating due process protection.
Vacated and remanded.
. The Supreme Court in this decade has recognized an increasing number of interests, conceived of as “property”, as enjoying procedural due process protection under either the fifth or fourteenth amendments. See, e. g., Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (public education); Perry v. Sinder-mann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (public employment); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (summary seizure of household goods upon ex parte application for a prejudgment writ of replevin); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (cancellation of driver’s license); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (cancellation of welfare payments); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (garnishment of wages). Yet the Court also has emphasized that “the range of interests protected by procedural due process is not infinite.” Board of Regents v. Roth, 408 U.S. 564, 570, 92 S.Ct. at 2705 (1972).
. See, e. g., Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977).
. Foreign Service officers do not serve “at the pleasure” of anyone, compare Mazaleski v. Treusdell, 183 U.S.App.D.C. 182, 190-191, 562 F.2d 701 at 709-710 n.23 (1977); rather, they may be separated only for cause, 22 U.S.C. § 1007 (1970), for having been “low-ranked” vis-a-vis their peers, id. § 1003, or for time-in-class. Id. Officers separated for cause have a statutory right to a hearing, id. § 1007(a), and may have other procedural rights as well. See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). Moreover, officers who are separated for low ranking are entitled to due process protection in connection with this adverse personnel action. Lindsay v. Kissinger, 367 F.Supp. 949 (D.D.C.1973). In both cases, the reason why the officer facing separation proceedings enjoys at least some degree of due process protection is that he or she has a protected property interest in — a legitimate claim of entitlement to — a term of employment limited only by the right of the Secretary of State to determine its duration for all within-class officers. Thus, we agree with appellants’ statement that “[sjimply because one may not be entitled to indefinite employment does not mean he has no property interest in his job during the term he does enjoy.” Reply Brief for Appellant at 3. This is not their case, however. Their situation is quite a different matter, because they have remained employed throughout the then specified term, rather than being separated prematurely, as would be the case of an officer separated out for “cause” under section 1007 or for “low ranking” under section 1003.
. Contrary to the government’s assertion, Brief and Appendix for Appellee at 21 n. 8, we are satisfied that this particular issue was properly raised below, Complaint HU 9-10; J.A. 3, and, indeed, the district court appears to have expressly considered and rejected the claim in stating that it was not disposed to broaden the scope of appellants’ term-limited expectancy. 406 F.Supp. at 1256.
. “It has been held repeatedly and consistently that Government employ is not property . . . [T]he due process clause does not apply to the holding of a Government office.” Bailey v. Richardson, 182 F.2d at 57.
. Neither longevity nor procedural prerequisites to a valid separation alone necessarily creates a protected property interest in one’s employment. See Cusumano v. Ratchford, 507 F.2d 980 (8th Cir. 1974), cert. denied, 423 U.S. 829, 96 S.Ct. 48, 46 L.Ed.2d 46 (1975); McNeill v. Butz, 480 F.2d 314, 320-21 (4th Cir. 1973). And a fortiori, neither generally would suffice to establish a legitimate claim of entitlement to a promotion. Under certain circumstances, a “common law” of promotion might be established by reference to historical promotion patterns. Cf. Board of Regents v. Roth, 408 U.S. at 578 n. 16, 92 S.Ct. 2701; Stretten v. Wads-worth Veterans Hosp., 537 F.2d 361, 367 (9th Cir. 1976) (common law of reemployment). Appellants do assert at one point that selection-out was “not a significant threat” when they entered the Foreign Service, since, “[f]or example, between the years 1960, when Mr. Colm entered the Service and 1967, when the last Selection Board considered him for promotion, only 16 officers were selected out for time-in-class — an average of two per year.” Brief for Appellants at 18. Though they have never directly raised this particular claim, we pause to note that this falls rather short of establishing a “common law” of promotion sufficient to create a legitimate claim of entitlement to it.
. One can well imagine the potential claims that such a holding might inspire. What, for instance, would the court make of a claim that one had been deprived of his constitutionally protected “fair” opportunity for promotion because he or she had been assigned to Zanzibar rather than to Paris, or to serve under a churlish political appointee rather than under a more sympathetic career officer? Mr. Justice Stevens surely had it right when he remarked in Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), that “[t]he federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies.” Id. at 349, 96 S.Ct. at 2080. That appellants’ claim herein may be “overbroad” does not necessarily mean, however, that it is entirely without merit. See text at pages---of 186 U.S.App.D.C., at pages 1131-1132 of 567 F.2d, infra.
. Conventional entitlement theory has not fared well in the periodical literature. See, e. g., Perry, Constitutional “Fairness”: Notes on Equal Protection and Due Process, 63 Va.L. Rev. 383, 419-30 (1977); Rabin, Job Security and Due Process: Monitoring Administrative Discretion Through a Reasons Requirement, 44 U.Chi.L.Rev. 60, 74-80 (1976); The Supreme Court, 1975 Term, 90 Harv.L.Rev. 56, 86-104 (1976); Comment, Entitlement, Enjoyment, and Due Process of Law, 1974 Duke L.J. 89 (1974). It is not for this “inferior” court to change it, however, even were we disposed to do so.
. We recognize, of course, that Congress has amended certain provisions cited here. See Foreign Relations Authorization Act, Fiscal Year 1976, Pub.L. No. 94-141, 89 Stat. 756 (amending 22 U.S.C. § 991 (1970)); Department of State Appropriations Authorization Act of 1973, Pub.L. No. 93-126, 87 Stat. 451 (amending 22 U.S.C. § 993 (1970)). We quote the relevant sections of the 1964 edition of United States Code so as to point out the possible substantive restrictions on the Department’s discretion before appellants’ retirement. The court is also cognizant of the procedural innovations enacted by Congress in 1975. See § 692(1)(D) of the Foreign Service Act of 1946, amended by Pub.L. No. 94 — 141, 22 U.S.C. § 1037a (Supp. V 1975).
. We recognize that Mr. McIntyre, who has only complained generally of secret adverse information in his personnel file, might well present a different case for purposes of this analysis.
. Resolution of appellants’ claims on statutory grounds would be preferable, being consistent with the fundamental principle that courts should avoid adjudicating constitutional questions if it is unnecessary to do so. Such avoidance is especially preferred where the nature of the constitutional issue poses a difficult decision with significant ramifications. Cf. Sohm v. Fowler, 124 U.S.App.D.C. 382, 365 F.2d 915, 918 (1966) (exhaustion of administrative remedies might well avoid necessity of constitutional adjudication).
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_petitioner
|
026
|
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.
REGENTS OF THE UNIVERSITY OF MICHIGAN v. EWING
No. 84-1273.
Argued October 8, 1985
Decided December 12, 1985
Stevens, J., delivered the opinion for a unanimous Court. Powell, J., filed a concurring opinion, post, p. 228.
Roderick K. Daane argued the cause for petitioner. With him on the briefs was Peter A. Davis.
Michael M. Conway argued the cause for respondent. With him on the brief was Mary K. Butler
Briefs of amici curiae urging reversal were filed for the United States by Acting Solicitor General Wallace, Acting Assistant Attorney General Willard, Deputy Solicitor General Getter, Leonard Schaitman, and Freddi Lipstein; for the American Council on Education et al. by Eugene D. Gul-land, Catherine W. Brown, Sheldon Elliot Steinbach, and Joseph Anthony Keyes, Jr.; for the Curators of the University of Missouri et al. by Marvin E. Wright and William F. Amet; and for Duke University et al. by Robert B. Donin, Daniel Steiner, Eugene J. McDonald, Estelle A. Fishbein, Michael C. Weston, and Peter H. Ruger.
Michael H. Gottesman, Robert M. Weinberg, Joy L. Koletsky, Laurence Gold, and David M. Silberman filed a brief for the National Education Association et al. as amici curiae urging affirmance.
Anne H. Franke and Jacqueline W. Mintz filed a brief for the American Association of University Professors as amicus curiae.
Justice Stevens
delivered the opinion of the Court.
Respondent Scott Ewing was dismissed from the University of Michigan after failing an important written examination. The question presented is whether the University’s action deprived Ewing of property without due process of law because its refusal to allow him to retake the examination was an arbitrary departure from the University’s past practice. The Court of Appeals held that his constitutional rights were violated. We disagree.
I — I
In the fall of 1975 Ewing enrolled m a special 6-year program of study, known as “Inteflex,” offered jointly by the undergraduate college and the Medical School. An undergraduate degree and a medical degree are awarded upon successful completion of the program. In order to qualify for the final two years of the Inteflex program, which consist of clinical training at hospitals affiliated with the University, the student must successfully complete four years of study including both premedical courses and courses in the basic medical sciences. The student must also pass the “NBME Part I” — a 2-day written test administered by the National Board of Medical Examiners.
In the spring of 1981, after overcoming certain academic and personal difficulties, Ewing successfully completed the courses prescribed for the first four years of the Inteflex program and thereby qualified to take the NBME Part I. Ewing failed five of the seven subjects on that examination, receiving a total score of 235 when the passing score was 345. (A score of 380 is required for state licensure and the national mean is 500.) Ewing received the lowest score recorded by an Inteflex student in the brief history of that program.
On July 24,1981, the Promotion and Review Board individually reviewed the status of several students in the Inteflex program. After considering Ewing’s record in some detail, the nine members of the Board in attendance voted unanimously to drop him from registration in the program.
In response to a written request from Ewing, the Board reconvened a week later to reconsider its decision. Ewing appeared personally and explained why he believed that his score on the test did not fairly reflect his academic progress or potential. After reconsidering the matter, the nine voting members present unanimously reaffirmed the prior action to drop Ewing from registration in the program.
In August, Ewing appealed the Board’s decision to the Executive Committee of the Medical School. After giving Ewing an opportunity to be heard in person, the Executive Committee unanimously approved a motion to deny his appeal for a leave of absence status that would enable him to retake Part I of the NBME examination. In the following year, Ewing reappeared before the Executive Committee on two separate occasions, each time unsuccessfully seeking readmission to the Medical School. On August 19, 1982, he commenced this litigation in the United States District Court for the Eastern District of Michigan.
II
Ewing’s complaint against the Regents of the University of Michigan asserted a right to retake the NBME Part I test on three separate theories, two predicated on state law and one based on federal law. As a matter of state law, he alleged that the University’s action constituted a breach of contract and was barred by the doctrine of promissory estoppel. As a matter of federal law, Ewing alleged that he had a property interest in his continued enrollment in the Inteflex program and that his dismissal was arbitrary and capricious, violating his “substantive due process rights” guaranteed by the Fourteenth Amendment and entitling him to relief under 42 U. S. C. § 1983.
The District Court held a 4-day bench trial at which it took evidence on the University’s claim that Ewing’s dismissal was justified as well as on Ewing’s allegation that other University of Michigan medical students who had failed the NBME Part I had routinely been given a second opportunity to take the test. The District Court described Ewing’s unfortunate academic history in some detail. Its findings, set forth in the margin, reveal that Ewing “encountered immediate difficulty in handling the work,” Ewing v. Board of Regents, 559 F. Supp. 791, 793 (1983), and that his difficulties — in the form of marginally passing grades and a number of incompletes and makeup examinations, many experienced while Ewing was on a reduced course load — persisted throughout the 6-year period in which he was enrolled in the Inteflex program.
Ewing discounted the importance of his own academic record by offering evidence that other students with even more academic deficiencies were uniformly allowed to retake the NBME Part I. See App. 107-111. The statistical evidence indicated that of the 32 standard students in the Medical School who failed Part I of the NBME since its inception, all 32 were permitted to retake the test, 10 were allowed to take the test a third time, and 1 a fourth time. Seven students in the Inteflex program were allowed to retake the test, and one student was allowed to retake it twice. Ewing is the only student who, having failed the test, was not permitted to retake it. Dr. Robert Reed, a former Director of the Inteflex program and a member of the Promotion and Review Board, stated that students were “routinely” given a second chance. 559 F. Supp., at 794. Accord, App. 8, 30, 39-40, 68, 73, 163. Ewing argued that a promotional pamphlet released by the Medical School approximately a week before the examination had codified this practice. The pamphlet, entitled “On Becoming a Doctor,” stated:
“According to Dr. Gibson, everything possible is done to keep qualified medical students in the Medical School. This even extends to taking and passing National Board Exams. Should a student fail either part of the National Boards, an opportunity is provided to make up the failure in a second exam.” Id., at 113.
The District Court concluded that the evidence did not support either Ewing’s contract claim or his promissory es-toppel claim under governing Michigan law. There was “no sufficient evidence to conclude that the defendants bound themselves either expressly or by a course of conduct to give Ewing a second chance to take Part I of the NBME examination.” 559 F. Supp., at 800. With reference to the pamphlet “On Becoming A Doctor,” the District Court held that “even if [Ewing] had learned of the pamphlet’s contents before he took the examination, and I find that he did not, I would not conclude that this amounted either to an unqualified promise to him or gave him a contract right to retake the examination.” Ibid.
With regard to Ewing’s federal claim, the District Court determined that Ewing had a constitutionally protected property interest in his continued enrollment in the Inteflex program and that a state university’s academic decisions concerning the qualifications of a medical student are “subject to substantive due process review” in federal court. Id., at 798. The District Court, however, found no violation of Ewing’s due process rights. The trial record, it emphasized, was devoid of any indication that the University’s decision was “based on bad faith, ill will or other impermissible ulterior motives”; to the contrary, the “evidence demonstrate^] that the decision to dismiss plaintiff was reached in a fair and impartial manner, and only after careful and deliberate consideration.” Id., at 799. To “leave no conjecture” as to his decision, the District Judge expressly found that “the evidence demonstrate^] no arbitrary or capricious action since [the Regents] had good reason to dismiss Ewing from the program.” Id., at 800.
Without reaching the state-law breach-of-contract and promissory-estoppel claims, the Court of Appeals reversed the dismissal of Ewing’s federal constitutional claim. The Court of Appeals agreed with the District Court that Ewing’s implied contract right to continued enrollment free from arbitrary interference qualified as a property interest protected by the Due Process Clause, but it concluded that the University had arbitrarily deprived him of that property in violation of the Fourteenth Amendment because (1) “Ewing was a ‘qualified’ student, as the University defined that term, at the time he sat for NBME Part I”; (2) “it was the consistent practice of the University of Michigan to allow a qualified medical student who initially failed the NBME Part I an opportunity for a retest”; and (3) “Ewing was the only University of Michigan medical student who initially failed the NBME Part I between 1975 and 1982, and was not allowed an opportunity for a retest.” Ewing v. Board of Regents, 742 F. 2d 913, 916 (CA6 1984). The Court of Appeals therefore directed the University to allow Ewing to retake the NBME Part I, and if he should pass, to reinstate him in the Inteflex program.
We granted the University’s petition for certiorari to consider whether the Court of Appeals had misapplied the doctrine of “substantive due process.” 470 U. S. 1083 (1985). We now reverse.
HH HH HH
In Board of Curators, Univ. of Mo. v. Horowitz, 435 U. S. 78, 91-92 (1978), we assumed, without deciding, that federal courts can review an academic decision of a public educational institution under a substantive due process standard. In this case Ewing contends that such review is appropriate because he had a constitutionally protected property interest in his continued enrollment in the Inteflex program. But remembering Justice Brandéis’ admonition not to “ ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied,”’ Ashwander v. TVA, 297 U. S. 288, 347 (1936) (concurring opinion), we again conclude, as we did in Horowitz, that the precise facts disclosed by the record afford the most appropriate basis for decision. We therefore accept the University’s invitation to “assume the existence of a constitutionally protectible property right in [Ewing’s] continued enrollment,” and hold that even if Ewing’s assumed property interest gave rise to a substantive right under the Due Process Clause to continued enrollment free from arbitrary state action, the facts of record disclose no such action.
As a preliminary matter, it must be noted that any substantive constitutional protection against arbitrary dismissal would not necessarily give Ewing a right to retake the NBME Part I. The constitutionally protected interest alleged by Ewing in his complaint, App. 15, and found by the courts below, derives from Ewing’s implied contract right to continued enrollment free from arbitrary dismissal. The District Court did not find that Ewing had any separate right to retake the exam and, what is more, explicitly “reject[ed] the contract and promissory estoppel claims, finding no sufficient evidence to conclude that the defendants bound themselves either expressly or by a course of conduct to give Ewing a second chance to take Part I of the NBME examination.” 559 F. Supp., at 800. The Court of Appeals did not overturn the District Court’s determination that Ewing lacked a tenable contract or estoppel claim under Michigan law, see supra, at 220, and n. 5, and we accept its reasonable rendering of state law, particularly when no party has challenged it.
The University’s refusal to allow Ewing to retake the NBME Part I is thus not actionable in itself. It is, however, an important element of Ewing’s claim that his dismissal was the product of arbitrary state action, for under proper analysis the refusal may constitute evidence of arbitrariness even if it is not the actual legal wrong alleged. The question, then, is whether the record compels the conclusion that the University acted arbitrarily in dropping Ewing from the Inteflex program without permitting a reexamination.
It is important to remember that this is not a case in which the procedures used by the University were unfair in any respect; quite the contrary is true. Nor can the Regents be accused of concealing nonacademic or constitutionally impermissible reasons for expelling Ewing; the District Court found that the Regents acted in good faith.
Ewing’s claim, therefore, must be that the University misjudged his fitness to remain a student in the Inteflex program. The record unmistakably demonstrates, however, that the faculty’s decision was made conscientiously and with careful deliberation, based on an evaluation of the entirety of Ewing’s academic career. When judges are asked to review the substance of a genuinely academic decision, such as this one, they should show great respect for the faculty’s professional judgment. Plainly, they may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment. Cf. Youngberg v. Romeo, 457 U. S. 307, 323 (1982).
Considerations of profound importance counsel restrained judicial review of the substance of academic decisions. As Justice White has explained:
“Although the Court regularly proceeds on the assumption that the Due Process Clause has more than a procedural dimension, we must always bear in mind that the substantive content of the Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments. This is... only to underline Mr. Justice Black’s constant reminder to his colleagues that the Court has no license to invalidate legislation which it thinks merely arbitrary or unreasonable.” Moore v. East Cleveland, 431 U. S. 494, 543-544 (1977) (White, J., dissenting).
See id., at 502 (opinion of Powell, J.). Added to our concern for lack of standards is a reluctance to trench on the prerogatives of state and local educational institutions and our responsibility to safeguard their academic freedom, “a special concern of the First Amendment.” Keyishian v. Board of Regents, 385 U. S. 589, 603 (1967). If a “federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies,” Bishop v. Wood, 426 U. S. 341, 349 (1976), far less is it suited to evaluate the substance of the multitude of academic decisions that are made daily by faculty members of public educational institutions — decisions that require “an expert evaluation of cumulative information and [are] not readily adapted to the procedural tools of judicial or administrative decision-making.” Board of Curators, Univ. of Mo. v. Horowitz, 435 U. S., at 89-90.
This narrow avenue for judicial review precludes any conclusion that the decision to dismiss Ewing from the Inteflex program was such a substantial departure from accepted academic norms as to demonstrate that the faculty did not exercise professional judgment. Certainly his expulsion cannot be considered aberrant when viewed in isolation. The District Court found as a fact that the Regents “had good reason to dismiss Ewing from the program.” 559 F. Supp., at 800. Before failing the NBME Part I, Ewing accumulated an unenviable academic record characterized by low grades, seven incompletes, and several terms during which he was on an irregular or reduced course load. Ewing’s failure of his medical boards, in the words of one of his professors, “merely culminate[d] a series of deficiencies.... In many ways, it’s the straw that broke the camel’s back.” App. 79. Accord, id., at 7, 54-55, 72-73. Moreover, the fact that Ewing was “qualified” in the sense that he was eligible to take the examination the first time does not weaken this conclusion, for after Ewing took the NBME Part I it was entirely reasonable for the faculty to reexamine his entire record in the light of the unfortunate results of that examination. Admittedly, it may well have been unwise to deny Ewing a second chance. Permission to retake the test might have saved the University the expense of this litigation and conceivably might have demonstrated that the members of the Promotion and Review Board misjudged Ewing’s fitness for the medical profession. But it nevertheless remains true that his dismissal from the Inteflex program rested on an academic judgment that is not beyond the pale of reasoned academic decisionmaking when viewed against the background of his entire career at the University of Michigan, including his singularly low score on the NBME Part I examination.
The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.
The Inteflex program has since been lengthened to seven years.
At this and later meetings Ewing excused his NBME Part I failure because his mother had suffered a heart attack 18 months before the examination; his girlfriend broke up with him about six months before the examination; his work on an essay for a contest had taken too much time; his makeup examination in pharmacology was administered just before the NBME Part I; and his inadequate preparation caused him to panic during the examination.
A fourth count of Ewing’s complaint advanced a claim for damages under 42 U. S. C. § 1983. The District Court held that the Board of Regents is a state instrumentality immunized from liability for damages under the Eleventh Amendment, and dismissed this count of the complaint. Ewing v. Board of Regents, 552 F. Supp. 881 (ED Mich. 1982).
“In the fall of 1975, when Ewing enrolled in the program, he encountered immediate difficulty in handling the work and he did not take the final examination in Biology. It was not until the following semester that he completed this course and received a C. His performance in his other first semester courses was as follows: a C in Chemistry 120, a C in his writing course, and an incomplete in the Freshman Seminar. In the next semester he took Chemistry 220, a Freshman Seminar, and Psychology 504. He received a B in the Freshman Seminar, a C in Chemistry 220, but he withdrew from Psychology 504. He was advised at that time that he could not take the Patient Care Course, usually given during the fall of an Inteflex student’s second year, and he was placed on an irregular program. Because of these difficulties, at the July 14, 1976 meeting of the Promotion and Review Board he requested a leave of absence, and when this was approved, he left the program.
“During the summer of 1976 while on leave, he took two Physics courses at Point Loma College in California. He reentered the Inteflex program at the University of Michigan in the winter 1977 term. In that term he repeated Chemistry 220 in which he received an A-. In the spring of 1977, he passed the Introduction to the Patient Care course.
“In the 1977-78 year, he completed the regular Year II program. But then he encountered new difficulty. In the fall of 1978 he received an incomplete in Clinical Studies 400, which was converted to a Pass; a B in Microbiology 420; and an incomplete in Gross Anatomy 507. The Gross Anatomy incomplete was converted to a C — by a make-up examination. During the winter of 1979 he received a C — in Genetics 505, a C in Microbiology 520, an E in Microanatomy and General Pathology 506, a B in Creative Writing, and a Pass in Clinical Studies 410. He appealed the Micro-anatomy and General Pathology grade, requesting a change from an E to a D, and a make-up exam to receive a Pass. His appeal was denied by the Grade Appeal Committee, and he was again placed on an irregular program; he took only the Clinical Studies 420 course in the spring 1979 semester.
“In July 1979, Ewing submitted a request to the Promotion and Review Board for an irregular program consisting of a course in Pharmacology in the fall and winter 1979-80 and a course in Human Illness and Neuroscience in 1980-81, thus splitting the fourth year into two years. The Board denied this request and directed him to take the fourth year curriculum in one academic year. He undertook to do so. He removed his deficiency in Microanatomy and General Pathology 506 by repeating the course during the winter 1980 semester and received a C +. In the spring term of 1980 he passed Developmental Anatomy with a B - grade, and he received a C grade in Neuroscience I 509 after a reexamination. In the fall of 1980, he received a passing grade in Neuroscience 609 and Pharmacology 626, and in the winter term of 1981, he received a passing grade in Clinical Studies 510 and a deficiency in Pharmacology 627. He was given a makeup examination in this course, and he received a 67.7 grade.
“He then took Part I of the NBME....” Ewing v. Board of Regents, 559 P. Supp., at 793-794.
In a footnote, the Court of Appeals stated: “Because we believe this case can be disposed of on the Section 1983 claim, this Court does not expressly reach the breach of contract or promissory estoppel claims.” Ewing v. Board of Regents, 742 F. 2d 913, 914, n. 2 (CA6 1984).
The University’s petition for certiorari also presented the question whether the Eleventh Amendment constituted a complete bar to the action because it was brought against the “Board of Regents of the University of Michigan,” App. 13, a body corporate. Cf. Florida Dept. of Health v. Florida Nursing Home Assn., 450 U. S. 147 (1981) (per curiam); Alabama v. Pugh, 438 U. S. 781 (1978)
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:
|
songer_direct2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Vernelle W. GOBER, Appellee, v. REVLON, INC., Appellant.
No. 8806.
United States Court of Appeals Fourth Circuit.
Argued Jan. 14, 1963.
Decided March 28, 1963.
Aubrey R. Bowles, Jr., Richmond, Va. (Jack N. Herod, and Bowles, Boyd & Herod, Richmond, Va., on brief), for appellant.
William H. King, Richmond, Va. (Robert H. Patterson, Jr., Richard D. Obenshain, and McGuire, Woods, King, Gordon & Davis, Richmond, Va., on brief), for appellee.
Before BOREMAN, BRYAN, and J. SPENCER BELL, Circuit Judges.
J. SPENCER BELL, Circuit Judge.
This is an appeal from a judgment of the District Court based upon a jury verdict. The plaintiff, Vernelle W. Gober, brought suit against the defendant, Revlon, Inc., manufacturer of a product known as “Wonder Base”, for injury to her fingernails and toenails alleged to have resulted from the use of the defendant’s product. Liberally construed, the complaint alleged three causes of action: 1. failure to warn when the defendant knew, or should have known, if it had adequately tested its product before marketing, of its harmful effects, 2. violation of the Federal Food, Drug and Cosmetic Act, and 3. breach of an implied warranty that the product was fit for the purpose for which it was sold. The defendant denied all three, and asserted the affirmative defense as to the breach of warranty claim that under the California law plaintiff’s notice was unreasonably delayed. The Court denied defendant’s motions for a directed verdict, and, after the jury found for plaintiff, denied defendant’s alternative motions for judgment N.O.V. or a new trial.
Nail polish tends to chip and crack, and, to alleviate this problem, the defendant manufactures and sells a nail base coat named “Wonder Base” to be applied to the nails before the polish. Plaintiff purchased Wonder Base on January 15, 1959, in San Francisco, California, where she then lived, and applied it to her nails each week end thereafter for more than eight months. In September 1959 she noticed discoloration, lines on the nails, and “thickening * * * like sand piling up under * * * [her] fingernails”. She immediately ceased using Wonder Base or any other cosmetic on her nails. Nevertheless her condition failed to clear up and became the cause of much discomfort. Beginning in December 1959, she visited a chiropodist and two dermatologists in San Francisco. Thereafter plaintiff moved to Richmond, Virginia, and in April 1960 consulted Dr. Richard W. Fowlkes, an eminent dermatologist, who continued to treat her and who was her principal witness. Since the defendant does not deny the plaintiff’s injuries, but instead contends that the defendant’s product did not cause them, we see no reason to go into detail as to their extent. Action was commenced on November 15, 1960, and when the case was tried in January 1962 the plaintiff’s nails, although much improved were far from normal.
In the late 1940’s and early 1950’s, dermatologists noticed a large number of female patients with symptoms similar to the plaintiff’s. Much interest was aroused and after long study, several nail base coat products, including one produced by the defendant called “Ever-on” were found to have been the causative agents. It was agreed that these nail base coat products contained sensitizing agents which after continued use resulted in an allergic reaction to a substantial number of users. The profession referred to this as “nail base coat dermatitis”.
Based on their earlier experiences with nail base coat dermatitis, and after eliminating other possible causes, Dr. Fowlkes and several other dermatologists called by the plaintiff testified that in their opinion the defendant’s product “Wonder Base” has caused the plaintiff’s condition.
The defendant’s evidence was offered to show that the earlier studies attributed the allergic reactions to three of the four ingredients in their earlier product and that none of these were present in “Wonder Base”. It was conceded, however, that a fourth ingredient, Toluene Sulfonamide Formaldehyde Resin, not the subject of intensive study during the earlier period, was a common ingredient to both products. Plaintiff’s witness, Dr. Fowlkes, attributed her reaction to this ingredient.
Dr. Fowlkes also testified over defendant’s objection that since treating the plaintiff he had treated three or four others for dermatitis which he attributed to the defendant’s product. Revlon admitted that it had received two complaints of base coat dermatitis resulting from the use of Wonder Base, one about eight weeks prior to plaintiff’s purchase of the product and one subsequent thereto. Plaintiff notified Revlon of her dermatitis on June 17, 1960. This was about nine months after she first noticed the trouble and about six months after she was first informed that Wonder Base might have been its cause.
The defendant contends on this appeal that the California law, which applies to the substantive issues in the case, does not permit recovery to the user of a cosmetic product for an allergic reaction resulting from her own peculiar sensitivity thereto. We do not agree that the California cases so hold. In addition, we do not find that the plaintiff admitted that her reaction was so unusual as to put her in a category by herself. California has not ruled directly on the point at issue, but the cases do not support the defendant’s contention. In Zager v. F. W. Woolworth Co., 30 Cal.App.2d 324, 86 P.2d 389 (Dist.Ct. App.2d Dist.Div. 1, 1939) plaintiff sued for breach of an implied warranty alleging that she had contracted dermatitis from use of a product sold by defendant. Plaintiff’s medical expert testified that the dermatitis was caused by an “idiosyncrasy” and that her reaction was “uncommon”. The Appeal Court sustained a verdict for the defendant on the grounds that the evidence permitted an inference that the plaintiff’s “constitutional condition” was the proximate cause of her injury rather than the defendant’s product. The Court, however, pointed out that the evidence would have sustained a verdict for the plaintiff.
The next California case, Briggs v. National Industries, Inc., 92 Cal.App.2d 542, 207 P.2d 110 (Dist.Ct.App. 4th Dist. 1949), involved a plaintiff who acquired dermatitis after an application of defendant’s cold wave solution. Plaintiff’s evidence indicated an allergic reaction. The Court affirmed a verdict for the defendant on the ground that there was no showing that the defendant had knowledge of the harmful nature of the product. Again, it is by no means clear that “allergy” is an absolute defense. As a matter of fact, the opinion clearly implies that if the defendant had knowledge of the potential danger of allergic reaction, particularly if the reaction were widespread, the defendant would have had a duty to warn.
Finally, in Proctor & Gamble Mfg. Co. v. Superior Court, 124 Cal.App.2d 157, 268 P.2d 199 (Dist.Ct.App. 1st Dist. Div. 2, 1954), the appeal arose over an effort to prohibit an order to disclose the number of complaints which the defendant had received. The Court ruled with the defendant on a technicality but in doing so it stated the rule that “if a seller knows or should know that an article sold by him is dangerous to some persons, even though few in number as compared with the number of users of the article, he is negligent if he fails to warn the ignorant of the hidden danger, 46 Am.Jur. 932, § 808; Annotation, Unusual Susceptibility to Injury, 121 A.L.R. 464; 26 A.L.R.2d 973”. The defendant attempts to distinguish this case from the rule stated in Proctor & Gamble on the grounds that the product therein discussed contained a “primary irritant” which if present in sufficient quantity would injure the ordinary user, but nowhere in the opinion does the Court limit its rule in any such manner. In fact the California Courts have nowhere attempted to draw a distinction between a “primary irritant” which if present in small quantity would injure only the highly sensitive and a “sensitizing agent” injurious only to those persons who have become sensitive thereto. We, therefore, feel that this case was properly submitted to the jury under the California cases. We find support for this reasoning in Wright v. Carter Products, 244 F.2d 53 (2 Cir. 1957), where the Second Circuit reversed a trial court which had relied on the statistical infrequency of injury, stating that the trial court should consider whether in the exercise of reasonable precaution the defendant could have foreseen that at least some of its potential users would suffer injury.
We draw further support from Esborg v. Bailey Drug Co., Wash., 378 P. 298 (Sup.Ct.1963), a recent case in which the court reconciled conflicting authorities throughout the nation in the course of finding liability for allergic reaction under a theory of breach of warranty of fitness for use. We agree with its conclusion and reasoning, and we feel that an analysis of cases we have cited indicates that the California Courts would also agree.
In the instant ease, the Trial Court charged that the manufacturers of a product “are not guarantors that it will not adversely affect those persons who have a peculiar susceptibility or sensitivity to the use of the product; in other words, one who is allergic to the use thereof”.
The Court also charged that “if the manufacturer knows, or should know, that an article sold by him may be dangerous to some persons, even though few in number as compared to the number of users of the article, it has a duty to warn of the danger”. In the light of the discussion above, this charge was correct. Any possible confusion to the jury redounded to the benefit of the defendant, for the jury might have been left with the impression that a finding" of allergy barred recovery despite Revlon’s breach of the duty to warn. Clearly, Revlon cannot complain of this.
Revlon contends that there is no evidence of negligence sufficient to allow a jury to find that it knew or should have known of the danger so that it had a duty to warn. However, there was sufficient, evidence for the jury to find (1) that, there was actual notice to defendant about eight weeks before plaintiff’s purchase; (2) that the defendant should have known that the tests which it conducted with respect to “Wonder Base”' were not adequate to disclose the possibility of injurious reaction because tests-of a similar nature had failed to disclose the injurious reaction to “Everon”; (3) in light of the testimony of Dr. Fowlkesindicating that Toluene Sulfonamide Formaldehyde Resins caused much dermatitis and were known sensitizers, defendant knew or should have known of the dangers of use of “Wonder Base”; and (4) experience with “Everon” should have put the defendant on notice of possible danger resulting from the use of nail base coats.
The Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. § 331, provides that “[t]he following acts * * * are prohibited: (a) [t]he introduction or delivery for introduction into interstate commerce of any food, drug, device, or cosmetic that is adulterated or misbranded. (b) [t] he adulteration or misbranding of any food, drug, device, or cosmetic in interstate commerce”. 21 U.S.C.A. § 361 provides that “[a] cosmetic shall be deemed to be adulterated —(a) [i]f it bears or contains any poisonous or deleterious substance which may render it injurious to users under the conditions of use prescribed in the labeling thereof, or under such conditions of use as are customary or usual * * *"
Defendant does not contest that under the law of California a violation of this act would constitute negligence per se. Rather, Revlon claims failure of the evidence to substantiate a finding of a violation of the act. There were sufficient facts before the jury, even though they were flatly contradicted, to support a finding that “Wonder Base” contained an ingredient that may cause much allergic reaction. There was testimony that Toluene Sulfonamide Formaldehyde Resin is a “known sensitizer” and a “particularly frequent offender”. The jury might have inferred that Revlon has not yet solved the problem that “Everon” pointed up. A reasonable jury may very well find that a drug which causes much allergic reaction contains a “deleterious substance which may render it harmful to users under the conditions of use prescribed in the labeling thereof”, and particularly so where the labeling does not warn of the possible reaction and indicate proper precautions. Cf. Gelb v. F. T. C., 144 F.2d 580 (2 Cir. 1944). We find no error in the Trial Court’s submission of this issue to the jury.
California Civ.Code § 1769 provides that “if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor”. In Whitfield v. Jessup, 31 Cal.2d 826, 193 P.2d 1 (Sup.Ct.1948) the Court stated that “what constitutes a reasonable time where the goods sold are foods containing latent defects, which are immediately consumed, presents a different question than does the ordinary sale where the article is subject to examination and use which will reveal its defect”. In that case the plaintiff contracted undulant fever from drinking some of defendant’s cream. Notice was not given for over five and a half months, and the issue of reasonability was held properly left to the jury. It was approximately six months from the time the plaintiff first suspected that “Wonder Base” was the cause till she notified defendant. It must be remembered that in cases such as this there is a great difference between suspecting and definitely knowing the cause. We do not think California Courts would have taken this issue from the jury.
We find no error in the Court’s admission of Dr. Fowlke’s testimony that he had treated others subsequently to the plaintiff for dermatitis which he attributed to the defendant’s product. This evidence was not admissible to show notice to the defendant, but was certainly admissible to show that the defendant’s product adversely affected an appreciable number of persons. Especially is this true in view of defendant’s strenuous attempt to show that plaintiff was unique in her sensitivity to defendant’s product. Counsel’s argument to the jury on this point was justifiable.
Dr. Fowlkes testified as to certain matters concerning chemicals. Specifically he stated that Toluene Sulfonamide Formaldehyde Resin contains elements which were frequent causes of allergy. Defendant protests that Dr. Fowlkes was not qualified as a chemical expert and so his testimony as to chemical matters should be stricken. However, Dr. Fowlkes was testifying as a dermatological expert to the reaction of humans to certain chemicals. Certainly this is within the scope of his medical qualifications. His lack of qualifications as a chemist went to the weight of his testimony, not its admissibility.
We have examined the defendant’s numerous other exceptions and find them without merit. The judgment of the District Court is therefore,
Affirmed.
. But see Greenman v. Yuba Power Products, Inc., Cal., 27 Cal.Rptr. 697, 377 P.2d 897, decided January 24, 1963, in which the California Supreme Court held that Sec. 1709’s requirement of notice within a reasonable time does not apply to a breach of warranty action brought by a consumer against a manufacturer with whom the plaintiff was not in privity.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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songer_genresp1
|
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.
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.
Clarence Irvin TURNER, Appellant, v. STATE OF MARYLAND, Appellee.
No. 8732.
United States Court of Appeals Fourth Circuit.
Argued Jan. 21, 1963.
Decided June 5, 1963.
Ronald P. Sokol, Milwaukee, Wis. (Court-assigned counsel) [Daniel J. Meador, Charlottesville, Va., on brief], for appellant.
Russell R. Reno, Jr., Asst. Atty. Gen. of Maryland (Thomas B. Finan, Atty. Gen. of Maryland, on brief), for appellee.
Before SOBELOFF, Chief Judge, and BOREMAN and J. SPENCER BELL, Circuit Judges.
SOBELOFF, Chief Judge.
This is the sequel to an earlier appeal by Clarence Irvin Turner, a state prisoner who is serving a sentence of five years for participation with four others in an attempted armed robbery. The former appeal was from an order of the District Court denying without a hearing his petition for a writ of habeas corpus, and we remanded the case for a hearing to determine whether the representation afforded Turner at his trial was, as he claimed, so inadequate as to constitute a denial of the effective assistance of counsel. Turner v. State of Maryland, 303 F.2d 507 (4th Cir. 1962).
On this disputed issue the District Court has now conducted a hearing and taken testimony from Turner and the lawyer who had been appointed to defend him in the state proceedings. 206 F.Supp. 111. The record developed at the hearing supports the District Court’s conclusion that the trial lawyer did in fact make an effort before trial to secure information necessary to Turner’s defense. Yet, admittedly, the attorney failed to consult with his client until less than half an hour before the time set for trial, although his appointment by the court preceded the trial date by two weeks. This neglect we, like the District Court, are unable to condone.
A sense of professional responsibility should have suggested to the lawyer that the omission to communicate with his client during the two weeks available before trial not only constituted a deplorable disregard of the client’s feelings, but involved the risk of overlooking significant information which the client might have in his possession or be able to point to. Normally, in the absence of clear proof that no prejudice resulted, we should be obliged to treat the lawyer’s representation as inadequate and the trial as falling short of the standards of due process guaranteed by the Fourteenth Amendment.
However, the hearing which the District Court conducted ascertained in considerable detail not only what the attorney did and failed to do before trial but demonstrated beyond doubt that the accused in fact had no information to communicate to the lawyer which could have been helpful to the defense. In close interrogation of the prisoner and the attorney, it was clearly shown to the District Judge’s satisfaction that during their short consultation Turner told the lawyer that the statement he had given to the police was true and that Turner in fact was involved in the attempted robbery.
Apparently, the appellant even now concedes that in so advising the lawyer, he intended to admit that he sat in the get-away car in front of the victim’s store while his co-defendants entered to rob him. Turner seems, however, to have thought that his auxiliary role did not constitute guilt in law. He admitted to the District Judge that he knew the purpose for which his co-defendants went into the store while he remained in the car with the engine running. Needless to say, the fact that Turner did not accompany the others but sat in the getaway ear does not absolve him. The circumstances could possibly be considered in mitigation of the sentence and were called to the jury’s attention. Neither to the lawyer in the brief pre-trial interview nor later at the plenary hearing in the District Court, when there was a deeper inquiry, did Turner suggest any other fact or ground for defense.
The voluntariness of the appellant’s, statement to the police was at no time contested and was independently proved at the District Court hearing.
In these circumstances there is no-ground for saying that the legal representation afforded Turner was so inadequate as to warrant the invalidation of his conviction and sentence. See and compare: Jones v. Cunningham, 313 F. 2d 347 (4th Cir. 1963); Edgerton v. State of North Carolina, 315 F.2d 676-(4th Cir. 1963); Jones v. Cunningham, 297 F.2d 851 (4th Cir. 1962); Snead v. Smyth, 273 F.2d 838 (4th Cir. 1959); Brown v. Smyth, 271 F.2d 227 (4th Cir.. 1959).
Nevertheless, we must condemn-the conduct of this court-appointed lawyer. Whether a lawyer is employed by a prosperous defendant at a handsome fee or serves an indigent without compensation in the discharge of the duty resting upon him as an officer of the court, the-canons of our profession require his “entire devotion to the interest of the client,, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability.” American Bar Association, Canons of Professional Ethics, Canon 15. If the spirit of this canon had been observed, no occasion-would have arisen for a post-conviction-inquiry into the quality of counsel’s performance.
Affirmed.
. The car, bought by the appellant and his co-defendants, was titled in Turner’s name because of the five purchasers only he was of legal age.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_juryinst
|
B
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the jury instructions were improper?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
John DeCECCO, Defendant, Appellant, v. UNITED STATES of America, Appellee.
No. 6367.
United States Court of Appeals First Circuit.
Nov. 30, 1964.
Joseph Mainelli, Providence, R. I., for appellant.
Alton W. Wiley, Asst. U. S. Atty., with whom Raymond J. Pettine, U. S. Atty., was on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH. Circuit Judges.
ALDRICH, Circuit Judge.
This appeal raises only one substantial question. The defendant was convicted following a jury trial, on a two-count information charging the failure to pay the special occupational (wagering) tax in violation of 26 U.S.C. §§ 7203 and 7262. The record appendix shows that the defendant presented evidence in his defense, but none to the effect that he had paid the tax. The defendant requested the court to charge the jury that the “mere fact that the Government’s evidence is uncontradicted” did not require the jury to accept it. The court gave not this request, but just the reverse. It is true that at the outset it properly instructed the jury that the government had the burden of proving “every material element of * * * [the] offense.” However, it thereafter stated that it was “undisputed” that the defendant had not paid the tax. Then, as to one count inferentially and the other specifically, removed the issue of payment from this instruction.
“If the Government has satisfied you by the required degree of proof, that is, by proof, beyond a reasonable doubt, that the defendant on and before March 7, 1963 was engaged in the business of accepting wagers, and that he wilfully failed to pay said tax before engaging in said business, then your verdict as to Count I shall be guilty.”
It seems fairly clear, not only because of the court’s failure to give the defendant’s request, and its reference to the fact of non-payment being undisputed, but also from what it said subsequently, that “wilfully failed to pay” was limited to defendant’s state of mind, and assumed the fact of non-payment. When the court came to the second count, where wilfullness was not involved, it laid the matter firmly on the line.
“As to Coünt II I instruct you -that if the Government has satisfied you by the required degree of proof that the defendant was engaged in the business of accepting wagers on and before March 7, 1963, then your verdict as to that count shall be guilty.
“That is the only element that the Government need prove because it is undisputed here that no wagering stamp was ever issued to the defendant or ever issued for the premises at'50 Pekin Street.”
The defendant duly noted his objection.
The objection must be sustained. No matter how persuasive the government’s evidence may seem to the court, there is no burden on a defendant to dispute it. Nor can defendant’s failure to offer evidence on one issue change or satisfy the government’s burden with respect to it. United States v. Gollin, 3 Cir., 1948, 166 F.2d 123, 125-127, cert. den. 333 U.S. 875, 68 S.Ct. 905, 92 L.Ed. 1151; Carothers v. United States, 5 Cir., 1947, 161 F.2d 718, 722. The court’s charge in this case, if correct, would mean that if a defendant rests at the close of the government’s case, the burden on all matters is on the government, but that if he offers evidence on some issues he admits any on which he does not. This would require a defendant to offer partial evidence at his peril. We could recognize no such principle. It may have seemed to the district court, and seems to us,.highly unlikely that the government’s case would founder on the issue of non-payment of the tax, but it was the defendant’s right to insist on its incurring that risk however small.
Judgment will be entered setting aside the verdicts of the jury and vacating the judgment thereon and ordering further proceedings not inconsistent herewith.
. Our opinion in Calo v. United States, 1 Cir., 1964, 338 F.2d 793, adequately covers the defendant’s attack on the descriptions in the search warrant.
Question: Did the court conclude that the jury instructions were improper?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_respond1_2_3
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". Your task is to determine what subcategory of private association best describes this litigant.
Ramiro M. MARTINEZ, Individually and as President of American Federation of Government Employees, Local 1617, Plaintiff-Appellant, v. The AMERICAN FEDERATION of GOVERNMENT EMPLOYEES, et al., Defendants-Appellees, and Robert Guttman, U.S. Dept. of Labor, etc., Intervenor-Defendant-Appellee.
No. 91-5615.
United States Court of Appeals, Fifth Circuit.
Jan. 12, 1993.
Manuel Escobar, Jr., San Antonio, Tex., for plaintiff-appellant.
Ann Wagner, Charles A. Hobbie, Mark D. Roth, Amer. Federation of Government Empl., AFL-CIO, Washington, D.C., for AFGE.
Steven J. Mandel, Deputy Assoc. Sol., Mark S. Flynn, Atty., Allen H. Feldman, Assoc. Sol., U.S. Dept, of Labor, Washington, D.C., Jack B. Moynihan, Asst. U.S. Atty., San Antonio, Tex., for Dept, of Labor.
Before BRIGHT, JOLLY, and BARKSDALE, Circuit Judges.
Senior Circuit Judge of the Eighth Circuit, sitting by designation.
E. GRADY JOLLY, Circuit Judge:
The sole question with which we are presented is whether the federal courts have subject matter jurisdiction over this dispute. Ramiro M. Martinez, a federal employee, and a member of the American Federation of Government Employees (“AFGE”), sued it under the Labor-Management Reporting and Disclosure Act (“LMRDA”) because it had removed him from office in his local union. The LMRDA grants federal courts jurisdiction over disputes between a union and its members if the union is a “labor organization” as the LMRDA defines the term. Unions that bargain solely with the government are not “labor organizations” subject to the LMRDA; all others are. The AFGE has stipulated that it “represents” private sector employees as well as government employees. This limited stipulation, however, does not make clear whether the AFGE deals with private sector employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms and conditions of employment. Thus, because we are uncertain whether jurisdiction over this dispute lies in the federal courts, we remand for further proceedings not inconsistent with this opinion.
I
Ramiro M. Martinez is a federal employee who works at the Kelly Air Force Base in San Antonio. The American Federation of Government Employees, Local 1617 (“Local 1617”), is the exclusive bargaining representative for the civilian employees working at the Kelly Air Force Base. Martinez is a member of the AFGE and Local 1617. All of Local 1617’s members are federal employees. Local 1617 is charted by its parent, the American Federation of Government Employees (“AFGE”). The AFGE is comprised of over a thousand local labor unions and represents almost 700,000 government employees. The parties stipulated that some of the AFGE’s local unions “represent” both private and public sector employees.
In July of 1986 and again in February of 1989, the members of Local 1617 elected Martinez president. On January 3, 1989, AFGE National Vice President Glen J. Petersen ordered an investigation of Martinez to determine whether he had violated the AFGE’s national constitution by selling a list of Local 1617’s members’ names and addresses to an insurance company. On March 28, John Sturdivant, AFGE’s national president, found there was probable cause to believe that Martinez had sold the membership list. Believing that Local 1617 could not conduct a fair and impartial trial on the charges, Sturdivant appointed a trial committee composed of the presidents of three other AFGE locals. The trial committee, which Martinez contends was biased against him, concluded that Martinez had violated the union constitution and recommended that Sturdivant remove him from his office as president and bar him from holding any union office for three years. On August 24, Sturdivant accepted the trial committee’s findings and recommendations and immediately removed Martinez from office.
In February, approximately the same time the AFGE was investigating Martinez, Local 1617 held its regularly scheduled election and Martinez was re-elected. Several unsuccessful candidates challenged the election, alleging that the union gave incumbents greater access to Local 1617’s newspaper. After Local 1617’s election committee dismissed the protests, two candidates filed appeals to National Vice President Peterson, who ordered an investigation of the election. Finding that incumbent union officers used union funds to enhance their campaigns, Peterson ordered a new election. Martinez appealed the decision to Sturdivant.
When Sturdivant denied his appeal, Martinez and the other Local 1617 officers filed a complaint with the Department of Labor, challenging the decision to overturn the February election. They alleged that the decision violated the right of Local 1617’s membership to elect their officers. They further alleged that the decision was arbitrary, capricious, and politically motivated. After conducting its own investigation, the Department of Labor dismissed the complaint.
II
Martinez then brought this action on September 7, 1989, in the United States District Court, Western District of Texas, at San Antonio. Martinez sued under the provisions of the Labor-Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. § 401, et seq. The complaint named the AFGE, some of its national officers, and some officers of other AFGE local unions as defendants. He alleged that the AFGE and its officers violated his rights under the LMRDA by removing-him from office, by barring him from office for three years, and by invalidating the February union election in which he had been reelected president.
On October 3, the AFGE and its officers filed a motion to dismiss or in the alternative for summary judgment. They argued that the court lacked subject matter jurisdiction because Martinez’s claims were subject to the exclusive remedial scheme provided by Title VII of the Civil Service Reform Act (“CSRA”) of 1978. 5 U.S.C. § 7101, et seq. The Acting Assistant Secretary of Labor for Labor-Management standards, who administers section 7120 of Title VII of the CSRA, intervened as a defendant. The Assistant Secretary then filed his own motion to dismiss for lack of subject matter jurisdiction.
The district court held that the CSRA applies to the plaintiff’s claims. Concluding that the CSRA’s comprehensive statutory scheme precludes judicial review of Martinez’s claim under the LMRDA, the district court granted the motions to dismiss. • Martinez appeals.
Ill
The only question before us is whether the LMRDA grants subject matter jurisdiction over Ramiro M. Martinez’s claims. If it does, then the district court erred in dismissing the complaint. This question is purely legal and, thus, we review the district court’s conclusions de novo. United States v. Harrison, 918 F.2d 469, 473 (5th Cir.1990).
We thus turn to the LMRDA and examine whether Martinez’s claim finds a jurisdictional home. Section 412 of the LMRDA provides that:
[a]ny person whose rights are secured by the provision of this subchapter have been infringed by any violation of the subchapter may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate.
29 U.S.C. § 412. Thus, Martinez as a “person,” can bring an action against his union under section 412 if he has rights secured by the LMRDA that have been violated. The LMRDA grants certain rights “to every member of a labor organization.” 29 U.S.C. § 411. It is undisputed that, in substance, Martinez asserts rights protected under the LMRDA. Those rights include the right to vote and otherwise to participate in union affairs. Martinez contends that the AFGE violated these protected rights when it wrongly denied him the right to participate in his union, including the right to hold office. Thus, the only remaining question as to whether Martinez has stated a claim under the LMRDA that would give us subject matter jurisdiction, is whether he is a member of a “labor organization.” This inquiry is determinative of jurisdiction here because the rights that Martinez asserts belong only to “every member of a labor organization.” 29 U.S.C. § 411.
The LMRDA defines a “labor organization” as:
[any organization] in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms and conditions of employment. (Emphasis added.)
29 U.S.C. § 402(i). Thus, the question is whether the AFGE meets this definition: does it deal with employers concerning the terms and conditions of employment? “Employer” is defined under the LMRDA as any employer except “the United States or any corporation wholly owned by the government of the United States or any state or political subdivision thereof.” 29 U.S.C. § 402(e). We, therefore, ask whether the AFGE or any of its locals deal with “any employer except the government— federal, state or local?” If it does, federal courts have jurisdiction over Martinez’s claims against the AFGE; if the only employer that the AFGE and its locals deal with is the government, we must affirm the dismissal of the complaint because the AFGE would not be a “labor organization” under the LMRDA.
On the record before us, the answer to this question is unclear. The AFGE has stipulated that it represents non-governmental employees. At the same time, the AFGE argues that it has no contracts with private employers and that no private employers recognize the AFGE as the exclusive bargaining agent of its employees. In short, the AFGE contends it is not a labor organization because, although it admits into membership some persons who work in the private sector, it does not deal with their private employers. Unfortunately, except for the somewhat ambiguous stipulation, the record is bare on the essential question of jurisdiction. This court has a duty to determine whether it has jurisdiction over any case before it. Morales v. Pan American Life Ins. Co., 914 F.2d 83, 85 (5th Cir.1990). We, therefore, must remand for further factual findings in order to determine whether we have jurisdiction. If the district court finds that the AFGE, through any of its locals, deals with any private sector employers on behalf of its members concerning the terms and conditions of employment, then the district court has jurisdiction and Martinez must have an opportunity to litigate his claims in federal court. Otherwise, the district court must dismiss the proceeding.
Before concluding, we pause to note the limited nature of our decision. A federal employee can only bring suit in federal court under the LMRDA when his dispute is with his union and the union happens to deal with private employers concerning the terms and conditions of employment. This decision today merely ensures that all members of the same national union have the same rights vis-a-vis their national union.
IV
For all of the reasons above, we REVERSE the judgment of the district court and REMAND for further proceedings not inconsistent with this opinion.
REVERSED and REMANDED.
. Both the CSRA and the LMRDA grant certain similar rights to union members. The CSRA, however, applies only to federal employees who are union members. Unlike the LMRDA, the CSRA does not grant union members the right to sue their unions in federal court. Instead, federal employees who are union members must bring their grievances against their union before the Assistant Secretary of the Department of Labor. The instant case deals with a situation where the two statutes overlap because the AFGE admits members who are employed in both the public and the private sector.
. In reaching its decision, the district court relied on Karahalios v. National Federation of Federal Employees, 489 U.S. 527, 109 S.Ct. 1282, 103 L.Ed.2d 539 (1989). In Karahalios, the Court held that the CSRA does not create a private cause of action for federal employees to sue their unions. The Court reminded us that we should be reluctant to provide additional remedies where a statute expressly provides one. Id. at 533, 109 S.Ct. at 1286-87. Karahalios, however, does not govern the instant case. Here, the question is not whether the CSRA provides a remedy, but whether the LMRDA provides one.
. Despite the AFGE’s arguments to the contrary, Martinez’s membership in Local 1617, a purely federal union, does not affect his rights under the LMRDA as a member of the AFGE. The national AFGE and its national officers are the defendants in the instant suit, and it is their actions that are the subject of the suit. If Martinez's local union and its officers were the defendants, we would have an entirely different case.
. See Berardi v. Swanson Memorial Lodge No. 48, 920 F.2d 198 (3d Cir.1990). Here, a government employee sued his union. The union admitted some honorary members, but it was unclear whether the union dealt with their employers. The court remanded for further factual findings. See also Hester v. Intern. Union of Operating Engineers, 818 F.2d 1537 (11th Cir.1987).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". What subcategory of private association best describes this litigant?
A. Business or trade association
B. utilities co-ops
C. Professional association - other than law or medicine
D. Legal professional association
E. Medical professional association
F. AFL-CIO union (private)
G. Other private union
H. Private Union - unable to determine whether in AFL-CIO
I. Public employee union- in AFL-CIO (include groups called professional organizations if their role includes bargaining over wages and work conditions)
J. Public Employee Union - not in AFL-CIO
K. Public Employee Union - unable to determine if in AFL-CIO
L. Union pension fund; other union funds (e.g., vacation funds)
M. Other
N. Unclear
Answer:
|
songer_civproc1
|
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 civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
CATERPILLAR OVERSEAS, S.A., Libellant-Appellant, v. S.S. EXPEDITOR and American Export Lines, Inc., Respondent-Appellee.
No. 245, Docket 27956.
United States Court of Appeals Second Circuit.
Argued March 6, 1963.
Decided June 20, 1963.
Bigham, Englar, Jones & Houston, New York City (F. Herbert Prem, New York City, of counsel), for libellant-appellant.
Haight, Gardner, Poor & Havens, New York City (M. E. DeOrchis, Clifford J. Brenner, New York City, of counsel), for respondent-appellee.
Before CLARK and WATERMAN, Circuit Judges, and ANDERSON, District Judge.
WATERMAN, Circuit Judge.
Caterpillar Overseas, S.A. appeals from a final decree in admiralty denying recovery in its action against American Export Lines, Inc., for damage to cargo. The decree was entered in the United States District Court for the Southern District of New York, Metzner, J., where jurisdiction was based upon 28 U.S.C. § 1338.
On December 30, 1959, Caterpillar shipped two tractors from New York to Tripoli, Libya, on appellee’s vessel, the 5.5. Expeditor. Because the vessel’s draft was too deep for a berth at the port of Tripoli, the ship anchored, upon arrival, in the Tripoli harbor. There the tractors were transferred from the 5.5. Expeditor, by use of her tackle operated by stevedores, to the deck of a steel lighter which was secured by lines to the ship. The lighter had been hired and the stevedores employed by W. E. Rippon & Sons, appellee’s agent in Tripoli for many years. The lighterage was billed to the consignee of the cargo, but, as permitted by the bill of lading, the consignee was neither consulted by the ship’s agent concerning the use of the lighter nor notified of the arrival of the ship.
After the tractors had been placed on the deck of the lighter and chocked, and while the stevedores were lifting a sling load of additional cargo from the ship’s hold, the lighter listed toward the ship and the two tractors were cast overboard. They were subsequently raised and deposited on the quay in a damaged condition.
At the trial below, American Export Lines sought to escape liability by setting up three exculpatory clauses in the bill of lading, the net effect of which was to excuse the carrier from any liability for loss or damage to the goods when they were not in its actual custody, or when they had been “discharged” onto a wharf or lighter. Moreover, American Export denied that it was negligent in the handling- of appellant’s cargo. Caterpillar sought to establish defendant’s negligence by offering proof that the lighter was unseaworthy and that it was given only a perfunctory examination by American Export's agents before use. Caterpillar also maintained that the exculpatory clauses in the bill of lading, relied upon by appellee, were void under Section 1 of the Harter Act, 46 U.S.C. § 190 et seq., or Section 3(a) of the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 1300 et seq. The district court ruled that the Harter Act and COGSA were inapplicable to the facts of this case, gave effect to the exculpatory clauses of the bill of lading, and held that American Export was not liable for the damage to appellant’s cargo. We reverse and remand with instructions that a decree be entered in favor of libelant, Caterpillar Overseas, Inc.
Under the general law of maritime carriage, public carriers of goods by sea were absolutely responsible for their safe arrival, subject to certain common law exceptions not here relevant. The Propellor Niagara v. Cordes, 21 How. 7, 16 L.Ed. 41 (1858); Carver, Carriage of Goods by Sea 3-20 (9th ed. 1952). During the Nineteenth Century shipowners sought to limit their stringent liabilities for loss or damage to cargo by inserting exculpatory clauses in their bills of lading. Some of these clauses exempted the carrier from liability for loss due to particularly-described perils and causes. Others went so far as to relieve the carrier from liability for the results' of his own negligence. Because of the superior bargaining position of the carriers, shippers of goods were largely powerless to avoid the proliferation of these exceptions to liability, and bills of lading became contracts of adhesion forced upon shippers by carriers. See generally Gilmore & Black, The Law of Admiralty 119 et seq. (1957); Note, 27 Texas L.Rev. 525 (1949).
In 1893 Congress sought to eliminate these abuses by enacting the Harter Act, 46 U.S.C. § 190 et seq. Section 1 of the Act provides that:
“It shall not be lawful for the * * * owner of any vessel transporting * * * property from or between ports of the United States and foreign ports to insert in any bill of lading * * * any clause, * * * whereby it * * * shall be relieved from liability for loss or damage arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery of * * * property committed to its * * * charge. Any and all words or clauses of such import inserted in bills of lading * * shall be null and void and of no effect.”
Section 2 declares of no effect any attempt to lessen, weaken of avoid the obligations of the owner to exercise due diligence properly to make the vessel seaworthy. In 1936, the Harter Act was supplanted, in large part, by the Carriage of Goods by Sea Act, 46 U.S.C. § 1300 et seq., which reaffirmed the carrier’s liability for loss or damage to cargo caused by its own negligence. COGSA’s coverage, however, extends only to the period, in foreign commerce, “from the time when the goods are loaded on to the time when they are discharged from the ship.” 46 U.S.C. § 1301(e). Harter remained applicable, therefore, to the period between the discharge of cargo from the vessel and its proper delivery. Gilmore & Black, supra at 126.
Under general maritime law, a port to port contract of carriage ordinarily requires the carrier to deliver goods into the possession of the consignee, or at least to place the goods upon a fit wharf at the port of destination. See Tan Hi v. United States, 94 F.Supp. 432 (N.D.Cal.1950); The Titania, 131 F. 229, 230 (2 Cir. 1904); The Mary Washington, 16 Fed.Cas. 1006, No. 9,229. This duty of proper delivery is not, of course, conterminous with the duty to transport, Isthmian Steamship Co. v. California Spray-Chemical Corp., 300 F.2d 41, 46 (9 Cir. 1960); nor is it affected by the allocation of costs between carrier and shipper. Ibid. Thus the carrier remains liable for negligence even if, as here, the goods are required to be off-loaded in the harbor and carried to shore by means of a lighter, and even if it is agreed that the shipper shall bear the costs of lighterage. Under Section 1 of the Harter Act, therefore, Clauses 1 and 12 of the present bill of lading, taken by themselves, would appear to be void insofar as they attempt to shift the risk of lighterage to the goods.
Appellee relies primarily, however, upon Clause 4 of its bill of lading which purports to make delivery of the goods, and thus the termination of the carrier’s statutory and contractual liability, concurrent with discharge of the cargo from the vessel, wherever that discharge may take place:
“4. In any situation whatsoever and wheresoever occurring * * * which in the judgment of the Carrier or the Master is likely to give rise to * * * delay or difficulty in arriving, discharging at or leaving the port of discharge or the usual or agreed place of discharge in such port, * * * the Carrier or the Master * * * may discharge-the goods into depot, lazaretto, craft, or other place; or * * * may discharge and forward the goods by any means * * *. The Carrier or the Master is not required to give-notice of discharge of the goods or the forwarding thereof as herein-provided. When the goods are discharged from the ship, as herein-provided, they shall be at their own risk and expense; such discharge shall constitute complete delivery and performance under this contract and the Carrier shall be freed from any further responsibility. * * ” (Emphasis supplied.)
The purpose of the clause is apparent.. By equating “discharge” with “delivery”' the carrier seeks to eliminate the operation of the Harter Act upon foreign trade. By fiat it seeks to secure immunity from liability which no combination of mere exculpatory clauses could achieve. All of this it purports to accomplish in the name of a freedom of contract which Congress, in enacting Harter and COGSA, found to be largely fictional in view of the disparate positions of the parties.
The Harter Act does not define “proper delivery,” however. It remains to be determined, therefore, whether such a delivery may be accomplished by the mere-discharge of goods from the vessel, wherever that discharge may take place.
In Isthmian Steamship Co. v. California Spray-Chemical Corp., 290 F.2d 486 (9 Cir. 1961), on reargument, 300 F.2d 41 (9 Cir. 1962), cargo was discharged from the carrier’s vessel, in the harbor at Alexandria, Egypt, to a lighter for oncarriage to the dock. In an action for damage to the cargo while it was on the lighter the carrier’s defense was based upon two bill of lading clauses which authorized the carrier to effect “delivery” of the cargo by discharging it onto lighters “at the risk and expense of the goods * * * without any responsibility whatsoever.” Holding the clauses void under Section 1 of the Harter Act, the Ninth Circuit ruled that “proper delivery” under the Act, in the absence of port customs and regulations to the contrary, constitutes delivery at a fit and customary wharf. See Morris v. Lamport & Holt, Ltd., 54 F.2d 925, 926 (S.D.N.Y.1931); aff’d per curiam, 57 F.2d 1081 (2 Cir. 1932); North American Smelting Co. v. Moller S.S. Co., 204 F.2d 384, 386, 388 (3 Cir. 1953); Remington Rand, Inc. v. American Export Lines, Inc., 132 F.Supp. 129 (S.D.N.Y.1955).
On the facts of this case we are not required to determine whether proper delivery under a port to port contract of maritime carriage may only be made by discharge onto a fit wharf. On the contrary, we should suppose, for example, that in a case where the consignee owns his own lighter and has his own stevedores, the Harter Act would not prohibit a properly drafted agreement providing for delivery of goods by discharge onto the consignee’s lighters. Here, however, the lighter was not selected by the shipper nor by the consignee of the goods, but by the carrier. Under these circumstances, proper delivery requires, at the very least, the selection of, and the discharge of the goods onto, a fit and safe lighter. See The Tangier, 23 How. 28, 16 L.Ed. 412 (U.S.1859). This obligation, for the negligent performance of which the carrier bears full responsibility, might be found as an implied term of the bill of lading before us; but insofar as the lighterage clauses have been construed by both the parties and the Court below so as to relieve the carrier of this duty, we are constrained to hold the clauses null and void under Section 1 of the Harter Act.
At the trial below appellant established a prima facie case for recovery by showing that its goods were received in damaged condition at the port of destination. Schnell v. The Vallescura, 293 U.S. 296, 304, 55 S.Ct. 194, 79 L.Ed. 373 (1934); Schroeder Bros., Inc. v. The Saturnia, 226 F.2d 147, 149 (2 Cir. 1955); Gilmore & Black, The Law of Admiralty, 162-63 (1957). Appellant further established that the damage was not due to the operation of the lighter during oncarriage from the vessel to the dock, for the Court below found that appellant’s tractors were cast overboard while goods were still being off-loaded onto the lighter and while the lighter was secured by lines to the ship.
Upon this showing, American Export Lines had the burden of proving that the loss was due to an excepted cause under its bill of lading. Because of the invalidity of Clauses 1, 4 and 12, however, American Export could only rely upon Section 4(2) (q) of COGSA (incorporated into the present bill of lading by agreement of the parties) which provides :
“4(2) Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from—
*****•»
“Any other cause arising without the actual fault and privity of the carrier and without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.”
We hold that appellee failed below to sustain this burden of proof. The trial court found that the lighter careened in fair weather and a calm sea, and, as appellee failed to advance any explanation of this occurrence, a presumption of unseaworthiness arose which appellee failed to rebut. Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 111-112, 62 S.Ct. 156, 86 L.Ed. 89 (1941); The Jungshoved, 290 F. 733 (2 Cir. 1923), cert. denied, 263 U.S. 707, 44 S.Ct. 35, 68 L.Ed. 517. This presumption gained support from Caterpillar’s affirmative proofs tending to show that the lighter had a holed side plate and warped tank top lids and no gaskets, which permitted water to enter the lighter’s tanks and thereby to render it unstable.
Although a presumption of actual unseaworthiness did not preclude American Export Lines from proving that it exercised due care in attempting to select a seaworthy lighter, little such evidence was forthcoming. Appellee’s agent, a stevedore foreman, allegedly took a 5 or 10 minute walk over the deck of the lighter, prior to the tractors’ off-loading, but no attempt was made to ascertain whether water was in the lighter’s tanks and no inspection was made of the lighter’s sides. Upon such a factual showing we hold that a finding of due care in the selection of the lighter could not be sustained.
Reversed and remanded.
. Clause Is “The Carrier shall not be liable in any capacity whatsoever for * * * loss of or damages to the goods occurring while the goods are not in the actual custody of the Carrier.”
Clause 4: “When the goods are discharged from the ship, as herein provided, they shall be at their .own risk and expense; suck discharge shall constitute complete delivery and performance under this contract and the Carrier shall be freed from any further responsibility.”
Clause 12: “All lighterage and use of craft in discharging shall be at the risk and expense of the goods.”
. Caterpillar argues, as an alternative ground for reversing the judgment below, that its tractors were not “discharged” at the time they were cast overboard, because the loading of the lighter was not fully completed before the accident occurred. See Remington Rand, Inc. v. American Export Lines, Inc., 132 F.Supp. 120, 137 (S.D.N.Y.1955); Hoegh Lines v. Green Truck Sales, Inc., 298 F.2d 240 (9 Cir.1962), cert. denied, 371 U.S. 817, 83 S.Ct. 31, 9 L.Ed.2d 58. We find it unnecessary, however, to rule on this issue. If injury to the goods occurred before their discharge from the vessel, Section 3(2) of COGSA would invalidate any agreement purporting to shield the carrier from liability for negligence in the handling of the goods. If the goods were discharged but not delivered at the time of the injury, Section 1 of the Harter Act would control.
. Although, the court below found that the loss was not caused by respondent’s negligence, this finding was apparently premised upon the belief that Clauses 1, 4 and 12, even if ineffective to shield the carrier from liability for negligence, shifted the burden of establishing American Export’s negligence to appellant. Properly-drafted lighterage clauses might well have achieved this result; the exculpatory provisions of the present bill of lading, however, were rendered void under the Harter Act even for purposes of forcing the shipper to prove negligence. Isthmian Steamship Co. v. California Spray-Chemical Corp., 290 F.2d at 490-491.
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
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sc_adminaction
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007
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
Andre Martello BARTON, Petitioner
v.
William P. BARR, Attorney General
No. 18-725
Supreme Court of the United States.
Argued November 4, 2019
Decided April 23, 2020
Noel J. Francisco, Solicitor General., Joseph H. Hunt, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Frederick Liu, Assistant to the Solicitor, General, Donald E. Keener, John W. Blakeley, Patrick J. Glen, Timothy G. Hayes, Attorneys, Department of Justice, Washington, DC, for Respondent.
H. Glenn Fogle, Jr., The Fogle Law Firm, LLC, Atlanta, GA, Adam G. Unikowsky, Lauren J. Hartz, Jenner & Block LLP, Washington, DC, for Petitioner.
Justice KAVANAUGH delivered the opinion of the Court.
Under the immigration laws, a noncitizen who is authorized to live permanently in the United States is a lawful permanent resident-also commonly known as a green-card holder. But unlike a U.S. citizen, a lawful permanent resident who commits a serious crime may be removed from the United States.
Andre Barton is a Jamaican national and a longtime lawful permanent resident of the United States. During his time in the United States, Barton has been convicted of state crimes on three separate occasions spanning 12 years. The crimes include a firearms offense, drug offenses, and aggravated assault offenses. By law, the firearms offense and the drug offenses each independently rendered Barton eligible for removal from the United States. In September 2016, the U.S. Government sought to remove Barton, and a U.S. Immigration Judge determined that Barton was removable.
Barton applied for cancellation of removal, a form of relief that allows a noncitizen to remain in the United States despite being found removable. The immigration laws authorize an immigration judge to cancel removal, but Congress has established strict eligibility requirements. See 8 U.S.C. §§ 1229b(a), (d)(1)(B). For a lawful permanent resident such as Barton, the applicant for cancellation of removal (1) must have been a lawful permanent resident for at least five years; (2) must have continuously resided in the United States for at least seven years after lawful admission; (3) must not have been convicted of an aggravated felony as defined in the immigration laws; and (4) during the initial seven years of continuous residence, must not have committed certain other offenses listed in 8 U.S.C. § 1182(a)(2). If a lawful permanent resident meets those eligibility requirements, the immigration judge has discretion to (but is not required to) cancel removal and allow the lawful permanent resident to remain in the United States.
Under the cancellation-of-removal statute, the immigration judge examines the applicant's prior crimes, as well as the offense that triggered his removal. If a lawful permanent resident has ever been convicted of an aggravated felony, or has committed an offense listed in § 1182(a)(2) during the initial seven years of residence, that criminal record will preclude cancellation of removal. In that way, the statute operates like traditional criminal recidivist laws, which ordinarily authorize or impose greater sanctions on offenders who have committed prior crimes.
In this case, after finding Barton removable based on his state firearms and drug offenses, the Immigration Judge and the Board of Immigration Appeals (BIA) concluded that Barton was not eligible for cancellation of removal. Barton had committed offenses listed in § 1182(a)(2) during his initial seven years of residence-namely, his state aggravated assault offenses in 1996. Barton's 1996 aggravated assault offenses were not the offenses that triggered his removal. But according to the BIA, and contrary to Barton's argument, the offense that precludes cancellation of removal need not be one of the offenses of removal. In re Jurado-Delgado, 24 I. & N. Dec. 29, 31 (BIA 2006). The U.S. Court of Appeals for the Eleventh Circuit agreed with the BIA's reading of the statute and concluded that Barton was not eligible for cancellation of removal. The Second, Third, and Fifth Circuits have similarly construed the statute; only the Ninth Circuit has disagreed.
Barton argues that the BIA and the Eleventh Circuit misinterpreted the statute. He contends that the § 1182(a)(2) offense that precludes cancellation of removal must be one of the offenses of removal. We disagree with Barton, and we affirm the judgment of the U.S. Court of Appeals for the Eleventh Circuit.
I
Federal immigration law governs the admission of noncitizens to the United States and the deportation of noncitizens previously admitted. See 8 U.S.C. §§ 1182(a), 1227(a), 1229a. The umbrella statutory term for being inadmissible or deportable is "removable." § 1229a(e)(2).
A noncitizen who is authorized to live permanently in the United States is a lawful permanent resident, often known as a green-card holder. When a lawful permanent resident commits a crime and is determined by an immigration judge to be removable because of that crime, the Attorney General (usually acting through an immigration judge) may cancel removal. § 1229b(a). But the comprehensive immigration law that Congress passed and President Clinton signed in 1996 tightly cabins eligibility for cancellation of removal. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009-546, 8 U.S.C. § 1101 note.
For a lawful permanent resident, the cancellation-of-removal statute provides that an immigration judge "may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien-(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony." § 1229b(a).
The statute imposes one other requirement known as the "stop-time rule." As relevant here, the statute provides that a lawful permanent resident, during the initial seven years of residence, also cannot have committed "an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title." § 1229b(d)(1)(B).
Andre Barton is a Jamaican national and a lawful permanent resident of the United States. In 1996, he was convicted in a Georgia court of a firearms offense stemming from an incident where Barton and a friend shot up the house of Barton's ex-girlfriend. In separate proceedings in 2007 and 2008, he was convicted in Georgia courts of state drug offenses. One case involved methamphetamine, and the other involved cocaine and marijuana.
In 2016, the U.S. Government charged Barton with deportability under 8 U.S.C. § 1227(a)(2) based on the 1996 firearms offense and the 2007 and 2008 drug crimes. See §§ 1227(a)(2)(B)(i), (C). Barton conceded that he was removable based on his criminal convictions for the firearms offense and drug offenses, and an Immigration Judge found him removable.
Barton applied for cancellation of removal. All agree that Barton meets two of the eligibility requirements for cancellation of removal. He has been a lawful permanent resident for more than five years. And he has not been convicted of an "aggravated felony," as defined by the immigration laws.
The Immigration Judge concluded, however, that Barton had committed an offense listed in § 1182(a)(2) during his initial seven years of residence. In 1996, 6½ years after his admission to this country, Barton committed aggravated assault offenses for which he was later convicted in a Georgia court. The Immigration Judge concluded that those aggravated assault offenses were covered by § 1182(a)(2) and that Barton was therefore not eligible for cancellation of removal.
The Board of Immigration Appeals and the U.S. Court of Appeals for the Eleventh Circuit likewise concluded that Barton was not eligible for cancellation of removal. Barton v. United States Atty. Gen., 904 F.3d 1294, 1302 (2018). The key question was whether the offense that precludes cancellation of removal (here, Barton's 1996 aggravated assault offenses) must also be one of the offenses of removal. The Board of Immigration Appeals has long interpreted the statute to mean that "an alien need not actually be charged and found inadmissible or removable on the applicable ground in order for the criminal conduct in question to terminate continuous residence in this country" and preclude cancellation of removal. Jurado-Delgado, 24 I. & N. Dec., at 31. In this case, the Eleventh Circuit likewise indicated that the § 1182(a)(2) offense that precludes cancellation of removal need not be one of the offenses of removal. 904 F.3d at 1299-1300. And the Second, Third, and Fifth Circuits have similarly construed the statute. See Heredia v. Sessions, 865 F.3d 60, 68 (C.A.2 2017) ; Ardon v. Attorney General of United States, 449 Fed.Appx. 116, 118 (C.A.3 2011) ; Calix v. Lynch, 784 F.3d 1000, 1011 (C.A.5 2015).
But in 2018, the Ninth Circuit disagreed with those courts and with the BIA. The Ninth Circuit ruled that a lawful permanent resident's commission of an offense listed in § 1182(a)(2) makes the noncitizen ineligible for cancellation of removal only if that offense was one of the offenses of removal. Nguyen v. Sessions, 901 F.3d 1093, 1097 (2018). Under the Ninth Circuit's approach, Barton would have been eligible for cancellation of removal because his § 1182(a)(2) offenses (his 1996 aggravated assault offenses) were not among the offenses of removal (his 1996 firearms offense and his 2007 and 2008 drug crimes).
In light of the division in the Courts of Appeals over how to interpret this statute, we granted certiorari. 587 U.S. ----, 139 S.Ct. 1615, 203 L.Ed.2d 755 (2019).
II
A
Under the immigration laws, when a noncitizen has committed a serious crime, the U.S. Government may seek to remove that noncitizen by initiating removal proceedings before an immigration judge. If the immigration judge determines that the noncitizen is removable, the immigration judge nonetheless has discretion to cancel removal. But the immigration laws impose strict eligibility requirements for cancellation of removal. To reiterate, a lawful permanent resident such as Barton who has been found removable because of criminal activity is eligible for cancellation of removal "if the alien-(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony." § 1229b(a).
To be eligible for cancellation of removal, the lawful permanent resident, during the initial seven years of residence after admission, also must not have committed "an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title." § 1229b(d)(1)(B).
The law therefore fashions two distinct ways in which a lawful permanent resident's prior crimes may preclude cancellation of removal.
The law precludes cancellation of removal if the lawful permanent resident has been convicted of an "aggravated felony" at any time. The statutory list of aggravated felonies is long: murder, rape, drug trafficking, firearms trafficking, obstruction of justice, treason, gambling, human trafficking, and tax evasion, among many other crimes. §§ 1101(a)(43)(A)-(U).
In addition, the law precludes cancellation of removal if the lawful permanent resident committed certain other serious crimes during the initial seven years of residence. The law defines those offenses by cross-referencing § 1182(a)(2), which specifies the offenses that can render a noncitizen "inadmissible" to the United States. Section 1182(a)(2) includes "crime[s] involving moral turpitude," which is a general category that covers a wide variety of crimes. Section 1182(a)(2) also expressly encompasses various violations of drug laws, prostitution, money laundering, and certain DUIs involving personal injury, among other crimes. §§ 1182(a)(2)(A)(i), (C), (D), (E), (I) ; see § 1101(h).
In specifying when cancellation of removal would be precluded because of prior criminal activity, Congress struck a balance that considers both the nature of the prior crime and the length of time that the noncitizen has resided in the United States. If a lawful permanent resident has been convicted at any time of certain crimes (what the immigration laws refer to as an "aggravated felony"), then the noncitizen is not eligible for cancellation of removal. If during the initial 7-year period of residence, a lawful permanent resident committed certain other offenses referred to in § 1182(a)(2), then the noncitizen likewise is not eligible for cancellation of removal.
In providing that a noncitizen's prior crimes (in addition to the offense of removal) can render him ineligible for cancellation of removal, the cancellation-of-removal statute functions like a traditional recidivist sentencing statute. In an ordinary criminal case, a defendant may be convicted of a particular criminal offense. And at sentencing, the defendant's other criminal offenses may be relevant. So too in the immigration removal context. A noncitizen may be found removable based on a certain criminal offense. In applying for cancellation of removal, the noncitizen must detail his entire criminal record on Form EOIR-42A. An immigration judge then must determine whether the noncitizen has been convicted of an aggravated felony at any time or has committed a § 1182(a)(2) offense during the initial seven years of residence. It is entirely ordinary to look beyond the offense of conviction at criminal sentencing, and it is likewise entirely ordinary to look beyond the offense of removal at the cancellation-of-removal stage in immigration cases.
It is not surprising, moreover, that Congress required immigration judges considering cancellation of removal to look in part at whether the noncitizen has committed any offenses listed in § 1182(a)(2). The offenses listed in § 1182(a)(2) help determine whether a noncitizen should be admitted to the United States. Under the cancellation-of-removal statute, immigration judges must look at that same category of offenses to determine whether, after a previously admitted noncitizen has been determined to be deportable, the noncitizen should nonetheless be allowed to remain in the United States. If a crime is serious enough to deny admission to a noncitizen, the crime can also be serious enough to preclude cancellation of removal, at least if committed during the initial seven years of residence.
Importantly, the text of the cancellation-of-removal statute does not simply say that cancellation of removal is precluded when, during the initial seven years of residence, the noncitizen was convicted of an offense referred to in § 1182(a)(2). Rather, the text says that cancellation of removal is precluded when, during the initial seven years of residence, the noncitizen "committed an offense referred to in section 1182(a)(2)... that renders the alien inadmissible." § 1229b(d)(1)(B). That language clarifies two points of relevance here.
First, cancellation of removal is precluded if a noncitizen committed a § 1182(a)(2) offense during the initial seven years of residence, even if (as in Barton's case) the conviction occurred after the seven years elapsed. In other words, as Congress specified in the statute and as the BIA and the Courts of Appeals have recognized, the date of commission of the offense is the key date for purposes of calculating whether the noncitizen committed a § 1182(a)(2) offense during the initial seven years of residence. See In re Perez, 22 I. & N. Dec. 689, 693-694 (BIA 1999) (date of commission is controlling date); see also Heredia, 865 F.3d at 70-71 ("the date of the commission of the offense governs the computation of a lawful permanent resident's continuous residency in the United States"); Calix, 784 F.3d at 1012 ("Once he was convicted of the offense" referred to in § 1182(a)(2), "he was rendered inadmissible to the United States. His accrual of continuous residence was halted as of the date he committed that offense").
Second, the text of the law requires that the noncitizen be rendered "inadmissible" as a result of the offense. For crimes involving moral turpitude, which is the relevant category of § 1182(a)(2) offenses here, § 1182(a)(2) provides that a noncitizen is rendered "inadmissible" when he is convicted of or admits the offense. § 1182(a)(2)(A)(i). As the Eleventh Circuit explained, "while only commission is required at step one, conviction (or admission) is required at step two." 904 F.3d at 1301.
In this case, Barton's 1996 state aggravated assault offenses were crimes involving moral turpitude and therefore "referred to in section 1182(a)(2)." Barton committed those offenses during his initial seven years of residence. He was later convicted of the offenses in a Georgia court and thereby rendered "inadmissible." Therefore, Barton was ineligible for cancellation of removal.
As a matter of statutory text and structure, that analysis is straightforward. The Board of Immigration Appeals has long interpreted the statute that way. See Jurado-Delgado, 24 I. & N. Dec., at 31. And except for the Ninth Circuit, all of the Courts of Appeals to consider the question have interpreted the statute that way.
B
Barton pushes back on that straightforward statutory interpretation and the longstanding position of the Board of Immigration Appeals. Barton says that he may not be denied cancellation of removal based on his 1996 aggravated assault offenses because those offenses were not among the offenses of removal found by the Immigration Judge in Barton's removal proceeding. Rather, his 1996 firearms offense and his 2007 and 2008 drug offenses were the offenses of removal.
To succinctly summarize the parties' different positions (with the difference highlighted in italics below): The Government would preclude cancellation of removal under this provision if the lawful permanent resident committed a § 1182(a)(2) offense during the initial seven years of residence. Barton would preclude cancellation of removal under this provision if the lawful permanent resident committed a § 1182(a)(2) offense during the initial seven years of residence and if that § 1182(a)(2) offense was one of the offenses of removal in the noncitizen's removal proceeding.
To support his "offense of removal" approach, Barton advances three different arguments. A caution to the reader: These arguments are not easy to unpack.
First, according to Barton, the statute's overall structure with respect to removal proceedings demonstrates that a § 1182(a)(2) offense may preclude cancellation of removal only if that § 1182(a)(2) offense was one of the offenses of removal. We disagree. In removal proceedings, a lawful permanent resident (such as Barton) may be found "deportable" based on deportability offenses listed in § 1227(a)(2). A noncitizen who has not previously been admitted may be found "inadmissible" based on inadmissibility offenses listed in § 1182(a)(2). See §§ 1182(a), 1227(a), 1229a(e)(2). Importantly, then, § 1227(a)(2) offenses-not § 1182(a)(2) offenses-are typically the basis for removal of lawful permanent residents.
Because the offense of removal for lawful permanent residents is ordinarily a § 1227(a)(2) offense, Barton's structural argument falls apart. If Barton were correct that this aspect of the cancellation-of-removal statute focused only on the offense of removal, the statute presumably would specify offenses "referred to in section 1182(a)(2) or section 1227(a)(2)." So why does the statute identify only offenses "referred to in section 1182(a)(2)"? Barton has no good answer. At oral argument, when directly asked that question, Barton's able counsel forthrightly acknowledged: "It's a little hard to explain." Tr. of Oral Arg. 27.
This point is the Achilles' heel of Barton's structural argument. As we see it, Barton cannot explain the omission of § 1227(a)(2) offenses in the "referred to" clause for a simple reason: Barton's interpretation of the statute is incorrect. Properly read, this is not simply an "offense of removal" statute that looks only at whether the offense of removal was committed during the initial seven years of residence. Rather, this is a recidivist statute that uses § 1182(a)(2) offenses as a shorthand cross-reference for a category of offenses that will preclude cancellation of removal if committed during the initial seven years of residence.
By contrast to this cancellation-of-removal provision, some other provisions of the immigration laws do focus only on the offense of removal-for example, provisions governing mandatory detention and jurisdiction. See §§ 1226(a), (c)(1)(A), (B), 1252(a)(2)(C). But the statutory text and context of those provisions support that limitation. Those provisions use the phrase "inadmissible by reason of " a § 1182(a)(2) offense, "deportable by reason of " a § 1227(a)(2) offense, or "removable by reason of " a § 1182(a)(2) or § 1227(a)(2) offense. And the provisions make contextual sense only if the offense justifying detention or denying jurisdiction is one of the offenses of removal. The cancellation-of-removal statute does not employ similar language.
Second, moving from overall structure to precise text, Barton seizes on the statutory phrase "committed an offense referred to in section 1182(a)(2)... that renders the alien inadmissible to the United States under section 1182(a)(2)." § 1229b(d)(1)(B) (emphasis added). According to Barton, conviction of an offense listed in § 1182(a)(2) -for example, conviction in state court of a crime involving moral turpitude-does not itself render the noncitizen "inadmissible." He argues that a noncitizen is not rendered "inadmissible" unless and until the noncitizen is actually adjudicated as inadmissible and denied admission to the United States. And he further contends that a lawfully admitted noncitizen usually cannot be removed from the United States on the basis of inadmissibility. As Barton puts it (and the dissent echoes the point), how can a lawfully admitted noncitizen be found inadmissible when he has already been lawfully admitted?
As a matter of common parlance alone, that argument would of course carry some force. But the argument fails because it disregards the statutory text, which employs the term "inadmissibility" as a status that can result from, for example, a noncitizen's (including a lawfully admitted noncitizen's) commission of certain offenses listed in § 1182(a)(2).
For example, as relevant here, § 1182(a)(2) flatly says that a noncitizen such as Barton who commits a crime involving moral turpitude and is convicted of that offense "is inadmissible." § 1182(a)(2)(A)(i). Full stop. Similarly, a noncitizen who has two or more convictions, together resulting in aggregate sentences of at least five years, "is inadmissible." § 1182(a)(2)(B). A noncitizen who a consular officer or the Attorney General knows or has reason to believe is a drug trafficker "is inadmissible." § 1182(a)(2)(C)(i). A noncitizen who receives the proceeds of prostitution within 10 years of applying for admission "is inadmissible." § 1182(a)(2)(D)(ii). The list goes on. See, e.g., §§ 1182(a)(2)(C)(ii)-(E), (G)-(I). Those provisions do not say that a noncitizen will become inadmissible if the noncitizen is found inadmissible in a subsequent immigration removal proceeding. Instead, those provisions say that the noncitizen "is inadmissible."
Congress has in turn made that status-inadmissibility because of conviction or other proof of commission of § 1182(a)(2) offenses-relevant in several statutory contexts that apply to lawfully admitted noncitizens such as Barton. Those contexts include adjustment to permanent resident status; protection from removal because of temporary protected status; termination of temporary resident status; and here cancellation of removal. See, e.g., §§ 1160(a)(1)(C), (a)(3)(B)(ii), 1254a(a)(1)(A), (c)(1)(A)(iii), 1255(a), (l )(2). In those contexts, the noncitizen faces immigration consequences from being convicted of a § 1182(a)(2) offense even though the noncitizen is lawfully admitted and is not necessarily removable solely because of that offense.
Consider how those other proceedings work. A lawfully admitted noncitizen who is convicted of an offense listed in § 1182(a)(2) is typically not removable from the United States on that basis (recall that a lawfully admitted noncitizen is ordinarily removable only for commission of a § 1227(a)(2) offense). But the noncitizen is "inadmissible" because of the § 1182(a)(2) offense and for that reason may not be able to obtain adjustment to permanent resident status. §§ 1255(a), (l )(2). So too, a lawfully admitted noncitizen who is convicted of an offense listed in § 1182(a)(2) is "inadmissible" and for that reason may not be able to obtain temporary protected status. §§ 1254a(a)(1)(A), (c)(1)(A)(iii). A lawfully admitted noncitizen who is a temporary resident and is convicted of a § 1182(a)(2) offense is "inadmissible" and for that reason may lose temporary resident status. §§ 1160(a)(1)(C), (a)(3)(B)(ii).
Those statutory examples pose a major hurdle for Barton's textual argument. The examples demonstrate that Congress has employed the concept of "inadmissibility" as a status in a variety of statutes similar to the cancellation-of-removal statute, including for lawfully admitted noncitizens. Barton has no persuasive answer to those examples. Barton tries to say that some of those other statutes involve a noncitizen who, although already admitted to the United States, is nonetheless seeking "constructive admission." Reply Brief 12; Tr. of Oral Arg. 11. But that ginned-up label does not avoid the problem. Put simply, those other statutes show that lawfully admitted noncitizens who are, for example, convicted of § 1182(a)(2) crimes are "inadmissible" and in turn may suffer certain immigration consequences, even though those lawfully admitted noncitizens cannot necessarily be removed solely because of those § 1182(a)(2) offenses.
The same is true here. A lawfully admitted noncitizen who was convicted of a crime involving moral turpitude during his initial seven years of residence is "inadmissible" and for that reason is ineligible for cancellation of removal.
In advancing his structural and textual arguments, Barton insists that his interpretation of the statute reflects congressional intent regarding cancellation of removal. But if Congress intended that only the offense of removal would preclude cancellation of removal under the 7-year residence provision, it is unlikely that Congress would have employed such a convoluted way to express that intent. Barton cannot explain why, if his view of Congress' intent is correct, the statute does not simply say something like: "The alien is not eligible for cancellation of removal if the offense of removal was committed during the alien's initial seven years of residence."
Third, on a different textual tack, Barton argues that the Government's interpretation cannot be correct because the Government would treat as surplusage the phrase "or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title." Recall that the statute, as relevant here, provides that a lawful permanent resident is not eligible for cancellation of removal if, during the initial seven years of residence, he committed "an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title." § 1229b(d)(1)(B) (emphasis added).
To begin with, all agree that under either side's interpretation, the reference to § 1227(a)(4) -as distinct from § 1227(a)(2) -is redundant surplusage. See § 1229b(c)(4) ; Brief for Petitioner 32-33 & n. 7. Under the Government's interpretation, it is true that the reference to § 1227(a)(2) also appears to be redundant surplusage. Any offense that is both referred to in § 1182(a)(2) and an offense that would render the noncitizen deportable under § 1227(a)(2) would also render the noncitizen inadmissible under § 1182(a)(2). But redundancies are common in statutory drafting-sometimes in a congressional effort to be doubly sure, sometimes because of congressional inadvertence or lack of foresight, or sometimes simply because of the shortcomings of human communication. The Court has often recognized: "Sometimes the better overall reading of the statute contains some redundancy." Rimini Street, Inc. v. Oracle USA, Inc., 586 U.S. ----, ----, 139 S.Ct. 873, 881, 203 L.Ed.2d 180 (2019) ; see Wisconsin Central Ltd. v. United States, 585 U.S. ----, ----, 138 S.Ct. 2067, 2073, 201 L.Ed.2d 490 (2018) ; Marx v. General Revenue Corp., 568 U.S. 371, 385, 133 S.Ct. 1166, 185 L.Ed.2d 242 (2013) ; Lamie v. United States Trustee, 540 U.S. 526, 536, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004). So it is here. Most importantly for present purposes, we do not see why the redundant statutory reference to § 1227(a)(
Question: What is the agency involved in the administrative action?
001. Army and Air Force Exchange Service
002. Atomic Energy Commission
003. Secretary or administrative unit or personnel of the U.S. Air Force
004. Department or Secretary of Agriculture
005. Alien Property Custodian
006. Secretary or administrative unit or personnel of the U.S. Army
007. Board of Immigration Appeals
008. Bureau of Indian Affairs
009. Bureau of Prisons
010. Bonneville Power Administration
011. Benefits Review Board
012. Civil Aeronautics Board
013. Bureau of the Census
014. Central Intelligence Agency
015. Commodity Futures Trading Commission
016. Department or Secretary of Commerce
017. Comptroller of Currency
018. Consumer Product Safety Commission
019. Civil Rights Commission
020. Civil Service Commission, U.S.
021. Customs Service or Commissioner or Collector of Customs
022. Defense Base Closure and REalignment Commission
023. Drug Enforcement Agency
024. Department or Secretary of Defense (and Department or Secretary of War)
025. Department or Secretary of Energy
026. Department or Secretary of the Interior
027. Department of Justice or Attorney General
028. Department or Secretary of State
029. Department or Secretary of Transportation
030. Department or Secretary of Education
031. U.S. Employees' Compensation Commission, or Commissioner
032. Equal Employment Opportunity Commission
033. Environmental Protection Agency or Administrator
034. Federal Aviation Agency or Administration
035. Federal Bureau of Investigation or Director
036. Federal Bureau of Prisons
037. Farm Credit Administration
038. Federal Communications Commission (including a predecessor, Federal Radio Commission)
039. Federal Credit Union Administration
040. Food and Drug Administration
041. Federal Deposit Insurance Corporation
042. Federal Energy Administration
043. Federal Election Commission
044. Federal Energy Regulatory Commission
045. Federal Housing Administration
046. Federal Home Loan Bank Board
047. Federal Labor Relations Authority
048. Federal Maritime Board
049. Federal Maritime Commission
050. Farmers Home Administration
051. Federal Parole Board
052. Federal Power Commission
053. Federal Railroad Administration
054. Federal Reserve Board of Governors
055. Federal Reserve System
056. Federal Savings and Loan Insurance Corporation
057. Federal Trade Commission
058. Federal Works Administration, or Administrator
059. General Accounting Office
060. Comptroller General
061. General Services Administration
062. Department or Secretary of Health, Education and Welfare
063. Department or Secretary of Health and Human Services
064. Department or Secretary of Housing and Urban Development
065. Administrative agency established under an interstate compact (except for the MTC)
066. Interstate Commerce Commission
067. Indian Claims Commission
068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
069. Internal Revenue Service, Collector, Commissioner, or District Director of
070. Information Security Oversight Office
071. Department or Secretary of Labor
072. Loyalty Review Board
073. Legal Services Corporation
074. Merit Systems Protection Board
075. Multistate Tax Commission
076. National Aeronautics and Space Administration
077. Secretary or administrative unit or personnel of the U.S. Navy
078. National Credit Union Administration
079. National Endowment for the Arts
080. National Enforcement Commission
081. National Highway Traffic Safety Administration
082. National Labor Relations Board, or regional office or officer
083. National Mediation Board
084. National Railroad Adjustment Board
085. Nuclear Regulatory Commission
086. National Security Agency
087. Office of Economic Opportunity
088. Office of Management and Budget
089. Office of Price Administration, or Price Administrator
090. Office of Personnel Management
091. Occupational Safety and Health Administration
092. Occupational Safety and Health Review Commission
093. Office of Workers' Compensation Programs
094. Patent Office, or Commissioner of, or Board of Appeals of
095. Pay Board (established under the Economic Stabilization Act of 1970)
096. Pension Benefit Guaranty Corporation
097. U.S. Public Health Service
098. Postal Rate Commission
099. Provider Reimbursement Review Board
100. Renegotiation Board
101. Railroad Adjustment Board
102. Railroad Retirement Board
103. Subversive Activities Control Board
104. Small Business Administration
105. Securities and Exchange Commission
106. Social Security Administration or Commissioner
107. Selective Service System
108. Department or Secretary of the Treasury
109. Tennessee Valley Authority
110. United States Forest Service
111. United States Parole Commission
112. Postal Service and Post Office, or Postmaster General, or Postmaster
113. United States Sentencing Commission
114. Veterans' Administration or Board of Veterans' Appeals
115. War Production Board
116. Wage Stabilization Board
117. State Agency
118. Unidentifiable
119. Office of Thrift Supervision
120. Department of Homeland Security
121. Board of General Appraisers
122. Board of Tax Appeals
123. General Land Office or Commissioners
124. NO Admin Action
125. Processing Tax Board of Review
Answer:
|
songer_dissent
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
Dennis LUTHER, Respondent-Appellant, v. Vincent MOLINA, Petitioner-Appellee.
No. 80-1436.
United States Court of Appeals, Seventh Circuit.
Argued June 13, 1980.
Decided Aug. 6, 1980.
Patty Merkanp Stemler, Washington, D. C., for respondent-appellant.
Arthur H. Grant, Arthur H. Grant, Ltd., Chicago, for petitioner-appellee.
Before FAIRCHILD, Chief Circuit Judge, WOOD, Circuit Judge, and LARSON, Senior District Judge.
The Honorable Earl R. Larson, United States Senior District Judge for the District of Minnesota, sitting by designation.
LARSON, Senior District Judge.
I.
On November 19, 1975, Vincent Molina pled guilty to distribution of heroin. He was given a five year prison term and a three year special parole term. After serving three years of his sentence, Molina was paroled on December 13, 1978. One condition of his release was that he attend a drug treatment program. He failed to follow this requirement and was placed in a halfway house in the fall of 1979. He did not attend therapy sessions at the halfway house and was found to be in violation of the house rules on December 18, 1979. On this same day, Molina’s parole officer informed him that a parole revocation hearing had been requested. On December 20 Molina left the halfway house and did not return. He had discussions with the parole authorities about surrendering, but he did not do so. A warrant was issued for Molina to be retaken and he was arrested and imprisoned on March 10, 1980, for violating the conditions of his parole. Molina had a preliminary interview with a parole officer on March 19, 1980. This hearing resulted in a finding of probable cause on one charge of violating parole conditions. Molina’s final parole revocation hearing was held on May 1, 1980. On May 27, 1980, the Parole Commission found that a parole violation had occurred, but returned Molina to the supervision of his parole officer.
On March 17, 1980, after he had been imprisoned, Mr. Molina filed a petition for a writ of habeas corpus in federal district court. In the petition he alleged that: (1) he had not violated his parole conditions; (2) his parole officer had made misrepresentations to make it appear that Molina had violated his parole conditions; (3) his parole officer continually harassed Molina; and (4) Molina had not been given enough time to appeal the decision to commit him to the halfway house. On March 20, 1980, the district court held a hearing on the petition. Although the district court stated that it would not consider the merits of Molina’s parole revocation, it did find that it had jurisdiction under the habeas statute to entertain a request for bail by an arrested parolee. The district court then ordered Molina released on a personal recognizance bond.
It is important to note that Molina sought no change in the revocation procedures, nor did his petition raise any constitutional or statutory objections to those procedures. The government appealed the grant of bail, asserting that the district court lacked the power to order bail for a parolee who is incarcerated pending revocation; or that even if the district court did have such power, it was improperly exercised here.
Two potential jurisdictional problems are presented. The first is whether such a bail order is final and therefore appealable. See 28 U.S.C. §§ 1291, 2253; Stachulak v. Coughlin, 520 F.2d 931, 933 (7th Cir. 1975), cert. denied, 424 U.S. 947, 96 S.Ct. 1419, 47 L.Ed.2d 354 (1976). Mr. Molina was claiming only the right to be released during the pendency of revocation proceedings. He was awarded the relief he sought. Neither he nor the district court contemplated any further action on the petition. Under these circumstances there was a final order in the habeas corpus proceeding and this Court has jurisdiction to consider the appeal.
The second and more perplexing jurisdictional problem is that of mootness. The Parole Commission argues that even if the issue presented here is moot as to Molina, it is “capable of repetition, yet evading review,” and therefore can be decided, although technically moot. See Securities & Exchange Commission v. Sloan, 436 U.S. 103, 109, 98 S.Ct. 1702, 1707, 56 L.Ed.2d 148 (1978). To come within this rule the challenged action must be too short in duration to be fully litigated prior to its cessation and there must be an expectation that the complaining party will again be subjected to the protested action. Board of Trade v. Commodity Futures Trading Commission, 605 F.2d 1016, 1020 (7th Cir. 1979), cert. denied, - U.S. -, 100 S.Ct. 1866, 64 L.Ed.2d 281 (1980).
Mr. Molina’s revocation proceedings are over, and it appears very likely that in most cases the revocation process will have run its course before full review of a bail order, including a possible appeal to the Supreme Court, could be obtained. Typically, then, bail orders will be too short in duration to be fully litigated before they expire. The second requirement is clearly met here. The Parole Commission states that it is repeatedly presented with this problem. It can reasonably be expected that parolees will continue to seek bail from the courts if they believe it will be granted even when the Commission refuses to release them before a revocation hearing.
II.
Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), held that the due process clauses of the United States Constitution require that certain minimum procedures be followed when parole is revoked. See also Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In 1976, Congress, through the Parole Commission and Reorgánization Act, 18 U.S.C. §§ 4201, et seq., revamped the parole system for federal prisoners. 18 U.S.C. §§ 4213-15 contain provisions relating to parole revocation. The United States Parole Commission has also issued regulations regarding revocation proceedings. See 28 C.F.R. §§ 2.44, et seq.
If a parolee is alleged to have violated his parole the Commission under § 4213 may either summon the parolee to a § 4214 revocation hearing or issue a warrant and retake the parolee. See 28 C.F.R. § 2.44. Of course, the question of release arises only when the Commission elects to retake and incarcerate the parolee. See 28 C.F.R. § 2.49(d). Section 4214(a)(1)(A) provides that the parolee is entitled to a “preliminary hearing . . . without unnecessary delay, to determine if there is probable cause to believe that he has violated a condition of his parole.!’ The parolee is informed at the end of the hearing whether probable cause is believed to exist. 28 C.F.R. § 2.48(d). If probable cause is found, § 4214(a)(l)(A)(i-iv) states that the Commission:
“may restore any parolee to parole supervision if:
(i) continuation of revocation proceedings is not warranted; or
(ii) incarceration of the parolee pending further revocation proceedings is not warranted by the alleged frequency or seriousness of such violation or violations;
(iii) the parolee is not likely to fail to appear for further proceedings; and
(iv) the parolee does not constitute a danger to himself or others.”
It is apparent that Congress intended to give the Parole Commission great latitude in making decisions relative to revocation. In fact, 18 U.S.C. § 4218(d) states that:
“Actions of the Commission pursuant to paragraphs (1), (2), and (3) of section 4203(b) shall be considered actions committed to agency discretion for purposes of section 701(a)(2) of title 5, United States Code.”
Section 4203(b)(3) provides that:
“The Commission, by majority vote, and pursuant to the procedures set out in this chapter, shall have the power to—
* * * * * j *
(3) modify or revoke an order paroling any eligible prisoner.”
Chapter 7 of title 5 of the United States Code governs judicial review under the Administrative Procedure Act. 5 U.S.C. § 701(a)(2) states that “This chapter applies except to the extent that — . (2) agency action is committed to agency discretion by law.” The effect of § 4218(d) is therefore to insulate all Commission decisions relating to parole revocation from judicial review under the APA. This includes the Commission’s decision to retain a retaken parolee in prison pending final action on revocation of his parole.
The exclusion of judicial review under the APA does not completely eliminate the possibility of habeas corpus relief, but it does indicate that courts must grant such relief only in extremely limited circumstances. Although the writ of habeas corpus is available to any person in federal custody, 28 U.S.C. § 2241(c)(1), the purpose of the writ is to provide a means to secure release from illegal detention. Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S.Ct. 1827, 1833, 36 L.Ed.2d 439 (1973); Johnson v. Avery, 393 U.S. 483, 485, 89 S.Ct. 747, 748, 21 L.Ed.2d 718 (1969). Imprisonment of parolees pending revocation is committed to the Parole Commission’s discretion; therefore generally this incarceration must be regarded as legal.
Even action committed to agency discretion, however, may be challenged because it contravenes applicable constitutional, statutory or regulatory provisions. Board of Trade v. Commodity Futures Trading Commission, supra, at 1021 n.6; Coppenbarger v. Federal Aviation Administration, 558 F.2d 836, 838 (7th Cir. 1977). This rule applies to the Parole Commission as it would to any other agency. Tedder v. United States Board of Parole, 527 F.2d 593, 594 n.1; Briney v. United States Parole Commission, 434 F.Supp. 586, 589 (M.D.Fla. 1977).
There are two situations in which a parolee detained during revocation proceedings might properly be granted habeas corpus relief, including bail. The first is when the petition alleges, and the court finds, that the incarceration itself does not comport with constitutional or statutory requirements. An example would be a claim that it would violate equal protection to deny bail to parolees awaiting revocation while making it available to probationers. Another example would be a showing that the Commission is not exercising its discretion at all; that its action in denying release is so arbitrary that due process rights are violated. A final example would be an allegation that the preliminary hearing was not conducted quickly enough to adhere to the constitutional or statutory requirements. If the district court found such claims to be valid, bail might be one form of relief which could be awarded. It would seem, however, that the preferable type of relief would be to order the Commission to correct the constitutional or statutory deficiency in its functioning. Release, whether outright or on bail, would rarely be necessary or appropriate.
The second situation where habeas relief could be awarded is when some other aspect of the revocation procedure is attacked as unconstitutional or contrary to statute or regulation. Here, too, it is conceivable that in very extreme circumstances release might be necessary to fully effectuate the habeas remedy.
Any time a court considers granting bail to a parolee who is detained pending a revocation hearing, it is potentially usurping authority Congress has delegated to the Commission. Before a district court orders bail, a proper respect for the system Congress has established requires that the parolee show that he has requested release from the Parole Commission and has been denied. In addition, bail should not be allowed unless at a minimum the requirements of § 4214(a)(l)(A)(i-iv) are met.
The rule set forth in this opinion will severely restrict the power of the district courts to grant bail to parolees held during revocation proceedings. This standard, however, gives recognition to Congress’ desire to allow the Parole Commission wide discretion in these matters, while at the same time providing the possibility of relief to those parolees who may truly be “illegally” detained.
REVERSED.
. It is also possible that a bail order might fall within the collateral order exception to the finality rule. See Abney v. United States, 431 U.S. 651, 658, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977); Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951).
. Cf. Marchand v. Director, 421 F.2d 331, 334 (1st Cir. 1970). There the parolee was the “complaining party.” He had been unconditionally released and the court found that the possibility of his again being affected by the issue was too speculative to warrant application of this exception to the mootness doctrine.
. The problem of how to interpret the language “without unnecessary delay” may be crucial to the legality of a parolee’s detention. Morrissey v. Brewer required that the preliminary hearing take place “as promptly as convenient.” 408 U.S. at 485, 92 S.Ct. at 2602. Chief Justice Burger, the author of the Morrissey opinion, undoubtedly borrowed this language from Hyser v. Reed, 318 F.2d 225, 243 (D.C.Cir.1963), which he also wrote. As explicated by the suggested amendments to the then Parole Board’s regulations, id. at 245, Chief Justice Burger seemed to be contemplating an almost immediate hearing; one which would occur even before the parolee was transported to federal prison.
The legislative history of the parole statute suggests that Congress was greatly concerned about the implications of incarcerating a parolee during the revocation process. The bill originally proposed by the House called for a preliminary hearing “as soon as possible” and did not envision reincarceration until after probable cause had been found. See 121 Cong.Rec. 15706, 15713; H.R.Rep.No. 184, 94th Cong., 1st Sess. (1975). The Senate substitute allowed immediate imprisonment, and is the source of the “without unnecessary delay” language. See S.Rep.No. 369, 94th Cong., 1st Sess. (1975), U.S.Code Cong. & Admin.News 1976, p. 335. Even though the Senate bill allowed detention before probable cause was found, the Senate Report recognized that:
“Because a new period of incarceration, even if only 24 hours in length, may cost a parolee his employment, and further jeopardize his chances for rehabilitation, the detention of an alleged violator is a serious matter and must be dealt with in a manner which clearly recognizes the degree of loss to be suffered.” Id. at 18, U.S.Code Cong. & Admin.News 1976, p. 339.
The sectional analysis of the bill comments that:
“The timing of the preliminary hearing is particularly crucial; even if probable cause is not found, if a parolee is held in jail awaiting his hearing for more than one or two days, his job will probably be lost and his reintegration efforts badly disrupted.” Id. at 25-26, U.S.Code Cong. & Admin.News 1976, p. 347.
It appears that the Senate contemplated a hearing within a very short time after detention. The Senate language was adopted in the final bill worked out in conference and the conference report states that the intent of the conferees was that “the Commission should minimize the disruption of the parolee’s life in any revocation proceeding.” H.R.Conf.Rep.No. 838, 94th Cong., 2d Sess. 33 (1976), U.S.Code Cong. & Admin.News 1976, p. 365.
It is possible that a ten day delay between detention and the preliminary hearing does not meet either constitutional or statutory requirements. Of course, delay may be caused by conditions beyond the Commission’s control, such as a request by the parolee for counsel at the hearing.
. 28 C.F.R. § 2.48(e) contains substantially the same language, but in addition § 2.49(d) provides that:
“A parolee retaken on a warrant issued by the Commission shall be retained in custody until final action relative to revocation of his release, unless otherwise ordered by the Regional Commissioner under § 2.48(e)(2).”
Hopefully this regulation is not an indication of a Commission presumption or policy against release. Such a policy might not accord with Congressional intent. See n.3, supra, at pp. 74, 75.
Parole Commission regulations state that if no probable cause is found at the preliminary hearing, the Regional Commissioner will review this finding as expeditiously as possible and a decision to release the parolee shall be implemented without delay. 28 C.F.R. § 2.48(d)(1). Therefore, if the probable cause hearing is held very quickly the parolee would suffer only brief detention if there is no merit to the parole violation charges.
. See 122 Cong.Rec. 5164 (remarks of Rep. Drinan). Congress several times indicated that it intended to codify existing limits on judicial review of actions relating to parole.
. See, e. g., United States ex rel. Taylor v. Brierton, 458 F.Supp. 1171, 1174 (N.D.Ill.1978). But see, e. g., United States ex rel. Derecynski v. Longo, 368 F.Supp. 682, 688 (N.D.Ill.973), aff’d mem., 506 F.2d 1403 (7th Cir. 1974).
This listing of possible claims is not intended to be exhaustive, nor is any comment on the merits of any example intended. Courts should beware of frivolous and repetitively litigated claims used solely in an attempt to gain bail. After Morrissey and the revision of the parole statute it is unlikely that many legitimate claims about the parole revocation process exist.
. See, e. g., United States ex rel. Napoli v. New York, 379 F.Supp. 603, 606 (E.D.N.Y.1974).
. See n.3, supra, at pp. 74, 75.
. See 122 Cong.Rec. 5163 (remarks of Rep. Kastenmeier) (if_ Commission fails to meet deadlines, remedy would be to seek mandamus under 28 U.S.C. § 1361); Smith v. United States, 577 F.2d 1025, 1028 (5th Cir. 1978).
. A parolee has no constitutional right to release or bail before a revocation hearing. Galante v. Warden, 573 F.2d 707, 708 (2d Cir. 1977); United States ex rel. Vitoratos v. Campbell, 410 F.Supp. 1208, 1211 (N.D.Ohio 1976); Burgess v. Roth, 387 F.Supp. 1155, 1162 (E.D.Pa. 1975). See In re Whitney, 421 F.2d 337, 338 (1st Cir. 1970).
. Courts have traditionally recognized an ancillary power to order bail in any petition for a writ of habeas corpus. Woodcock v. Donnelly, 470 F.2d 93, 94 (1st Cir. 1972); Baker v. Sard, 420 F.2d 1342, 1343 (D.C.Cir.1969). The standard for exercise of this power, however, is also very narrow. See Ostrer v. United States, 584 F.2d 594, 596 n.1 (2d Cir. 1978); Baker v. Sard, supra; see also Calley v. Calloway, 496 F.2d 701, 702 and n.1 (5th Cir. 1974); Pihakis v. Thomas, 470 F.Supp. 721, 722 (S.D.N.Y.1979).
Question: What is the number of judges who dissented from the majority?
Answer:
|
songer_numresp
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
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.
Donald G. GRIFFIN, Petitioner-Appellant, v. WARDEN, MARYLAND CORRECTIONAL ADJUSTMENT CENTER; Attorney General of the State of Maryland, Respondents-Appellees.
No. 91-6066.
United States Court of Appeals, Fourth Circuit.
Argued April 10, 1992.
Decided July 28, 1992.
Mark Lawrence Gitomer, Cardin & Gi-tomer, P.A., Baltimore, Md., argued, for petitioner-appellant.
Gary Eugene Bair, Asst. Atty. Gen., Crim. Appeals Div., Baltimore, Md., argued (J. Joseph Curran, Jr., Atty. Gen. of Maryland, Crim. Appeals Div., on brief), for respondents-appellees.
Before ERVIN, Chief Judge, and HALL and PHILLIPS, Circuit Judges.
OPINION
K.K. HALL, Circuit Judge:
Donald Griffin appeals a final order of the district court denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Concluding that Griffin was denied the minimum level of effective assistance of counsel guaranteed to him by the Sixth Amendment, we reverse.
I.
At 3:45 p.m. on July 24, 1983, a Rite-Aid Drug Store in Baltimore, Maryland, was robbed by two men armed with handguns. Two security guards were shot and wounded during the robbery.
Two days later, one of the security guards picked appellant Donald Griffin out of a photo array. When he learned that he was wanted in connection with the robbery, Griffin surrendered to police. He was charged with robbery and using a handgun during a crime of violence. Attorney Charles Howard entered an appearance for Griffin in December, 1983, and represented him when he tendered a not guilty plea. On or about February 22, 1984, Griffin and his mother, Dorothy Josey, provided attorney Howard with a list of five alibi witnesses. Howard failed to contact these witnesses or to respond to the state’s discovery requests, among which were requests to be notified of intent to rely on alibi and for the identities of alibi witnesses. See Md.Rule 4-263.
From his personal standpoint, Howard had moré serious concerns than his representation of Griffin.' On June 1, 1984, he was disbarred for misappropriating client funds, commingling funds, failing to keep records, and neglecting a legal matter. In concluding that the ultimate sanction of disbarment was warranted, the Maryland Court of Appeals pointed out that it had previously reprimanded Howard for neglecting cases, including, on three occasions, failing to be present when a case was called. Attorney Grievance Comm’n v. Howard, 299 Md. 731, 737-738, 475 A.2d 466 (1984), citing, Attorney Grievance Comm’n v. Howard, 282 Md. 515, 385 A.2d 1191 (1978).
George David, who shared office space with Howard, took over Griffin’s file. Howard advised David to “take a plea” for Griffin. David, expecting Griffin to plead guilty, did nothing. He contacted no witnesses, though he “imagine[s]” he “glanced” at the file, and he failed to confirm that the state’s discovery requests had been answered. At a hearing on October 25, 1984, four months after he entered his appearance in Howard’s stead, David met his client for the first time. At this hearing, David expected Griffin to plead guilty. Griffin refused.
On November 19, 1984,' Griffin’s case was scheduled for trial. David still expected Griffin to change his mind and plead guilty, and he had done nothing more to prepare for trial. Instead, Griffin reiterated his not guilty plea and told the court he was “uncomfortable” with his attorney. Just before the jury was brought into the courtroom, this colloquy, a harbinger of the events we address today, ensued:
THE COURT: Now, Mr. Griffin, have you had an opportunity to discuss your case adequately with Mr. David? Have you talked it over with him?
THE DEFENDANT: Somewhat. I haven’t talked at all with him.
THE COURT: Was there anything you wanted to tell him that you haven’t told him?
THE DEFENDANT: I haven’t seen my true bill indictment papers or nothing. I ain’t seen nothing.
THE COURT: All right. Show it to him, Mr. David. Anything else other than that?
THE DEFENDANT: No, not really. I just wanted to know everything they charging me with.
The state’s evidence at trial consisted of two eyewitness identifications by the security guards. Because David had failed to contact any of Griffin’s witnesses, only one — Dorothy Josey, Griffin’s mother— was present. She was there only because Griffin himself had been able to get a message to her through a cellmate that the trial was about to be held.
Attorney David called Josey to the stand. When he asked a question that would have prompted alibi testimony, the state objected. At a bench conference, the court ruled that the testimony would not be permitted because of David’s (and Howard’s) failure to notify the state of Griffin’s intent to rely on an alibi. David offered two excuses for the failure to respond to the state’s discovery request, both of which were confessions of his own dereliction. First, he told the court that “any discovery ... would have been propounded to Charles Howard and I don’t know if he replied or not.” Moments later, he said “it’s been my impression ... that this case was going to be pleaded all the way up until this morning.”
Unable to elicit the alibi evidence, David asked Griffin’s mother no further questions. Griffin then testified on his own behalf. He stated that he was at home in his pajamas at the time of the robbery, and that soon thereafter he went with Rodney Staples and Perry Payne to Eddie Williams’ house.
On closing argument, the prosecutor attacked Griffin’s story, and specifically referred to the lack of corroboration of his alibi. In other words, the state got double mileage out of the failure to notify it of the alibi defense — it was able to exclude evidence corroborating Griffin’s story and then emphasize the lack of corroboration to the jury.
Griffin was convicted of robbery and use of a handgun in connection with a crime of violence. He was sentenced to two consecutive twenty-year terms. He appealed. The Court of Special Appeals affirmed, holding that the trial court acted within its discretion in refusing to admit the alibi testimony. Griffin v. State, No. 166 (Md.Ct.Spec.App., October 21, 1985). The appellate court had harsh words for attorney David, however: “Appellant’s trial counsel’s excuse that he thought there would be a plea bargain is no justification for neglecting to discover alibi witnesses and reveal them to the State.” Griffin’s petition for certiorari to the Court of Appeals of Maryland was denied.
On October 1, 1987, Griffin filed a petition for post-conviction relief in state trial court, in which he argued that he had been denied effective assistance of counsel. An evidentiary hearing was held, at which Griffin, his five alibi witnesses, and both attorneys — Howard and David — testified. The state court denied relief. Griffin v. State, P.C.P.A. No. 6113 (Baltimore (Md.) City Cir. Ct., June 1, 1988). The Court of Special Appeals denied leave to appeal on December 7, 1988. On December 6, 1990, Griffin filed this petition in district court under 28 U.S.C. § 2254. Adopting the reasoning of the state court, which we discuss below, the district court denied the petition without a hearing on April 2, 1991. Griffin appeals.
II.
The Supreme Court has devised a two-step inquiry to determine whether a lawyer’s poor performance has deprived an accused of his Sixth Amendment right to assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show that his attorney’s performance was deficient. “Deficient performance” is not merely below-average performance; rather, the attorney’s actions must fall below the wide range of professionally competent performance. Second, the defendant must show that he was prejudiced by the substandard performance. “Prejudice” is a “reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068. Because effectiveness of counsel is a mixed question of law and fact, we owe no special deference to the finding of the state court on the question. Id. at 698, 104 S.Ct. at 2070.
III.
The “deficient performance” prong is easily met here. An attorney’s failure to present available exculpatory evidence is ordinarily deficient, “unless some cogent tactical or other consideration justified it.” Washington v. Murray, 952 F.2d 1472, 1476 (4th Cir.1991). Accord, Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990), appeal after remand 961 F.2d 113 (8th Cir.1992) (failure to interview alibi witnesses was deficient performance under first Strickland factor); Harris v. Reed, 894 F.2d 871, 878 (7th Cir.1990) (failure to call witnesses to contradict eyewitness identification of defendant was ineffective assistance); Grooms v. Solem, 923 F.2d 88, 90 (8th Cir.1991) (“it is unreasonable not to make some effort to contact [alibi witnesses] to ascertain whether their testimony would aid the defense”).
As we will discuss below, the “cogent tactical considerations” that the state court bestowed on David for failing to present Griffin’s alibi witnesses are exercises in retrospective sophistry. From the attorney's perspective at the time of trial, no reasonable excuse for failing to notify the state of Griffin’s alibi and to secure the attendance of alibi witnesses appears or is even suggested in the evidentiary record. Indeed, David’s statements at the bench conference are unambiguous admissions of unpardonable neglect. We hold that counsel’s performance was deficient.
IY.
We thus turn to the second Strickland factor: was Griffin prejudiced, i.e., does the attorney’s deficient performance undermine confidence in the outcome? The state post-conviction court focused on this prong, but its decision invokes speculation and hindsight to evade the stark prejudice we find apparent. A synopsis of the state court’s analysis of the testimony of the alibi witnesses will illustrate.
A.
Joseph “Eddie” Williams and his mother, Beatrice Williams, both testified that Griffin arrived at their house at 4 p.m. on the date of the robbery, where he remained, watching sports and eating chicken, until nightfall. The state court concluded that this evidence did not establish an alibi because it “[did] not cover the period in question.” The court’s conclusion is strained, at best. The Williams’ house is three to four miles from the site of the robbery. Griffin testified that it takes twenty to twenty-five minutes to drive that distance because of numerous stoplights. Finally, the court ignored the trial testimony of one of the Rite Aid security guards, who testified that the robbers entered the store at 3:45 p.m. and did not leave until ten to fifteen minutes later.
B.
Rodney Staples testified that he arrived at Griffin’s house between 3:00 and 3:15 p.m. on the day of the robbery. He stated that soon thereafter he and Griffin went to the Williams’ house to watch sports. Inasmuch as this testimony clearly “covers” the period in question, the state court took a different tack. Staples had been picked out of a photo array by one of the security guards and identified as one of the robbers. Therefore, concluded the state court, it may have been sound trial strategy not to call Staples, i.e. if he were an accomplice, and the state could show that when he was on the stand, it could have hurt Griffin’s case.
This reasoning is thoroughly disingenuous. David did not even talk to Staples, let alone make some strategic decision not to call him. Strickland and its progeny certainly teach indulgence of the on-the-spot decisions of defense attorneys. On the other hand, courts should not conjure up tactical decisions an attorney could have made, but plainly did not. The illogic of this “approach” is pellucidly depicted by this case, where the attorney’s incompetent performance deprived him of the opportunity to even make a tactical decision about putting Staples on the stand. A court should “evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689,104 S.Ct. at 2065. Tolerance of tactical miscalculations is one thing; fabrication of tactical excuses is quite another. Kimmelman v. Morrison, 477 U.S. 365, 386-387, 106 S.Ct. 2574, 2588-2589, 91 L.Ed.2d 305 (1986) (hindsight cannot be used to supply a reasonable reason for decision of counsel); Harris, 894 F.2d at 878 (same).
C.
Griffin’s mother testified that her son was at home until he left to go to the Williams’ shortly after 4:00 p.m. The state court faulted this testimony because of discrepancies between it and other alibi testimony in estimates of times. Inasmuch as the state court discounted all the other alibi evidence, the court’s insistence that Griffin’s mother’s testimony be strictly consistent with it is a plain fallacy.
The state court also credited David’s testimony that he was afraid Griffin’s mother would commit perjury as a sound reason not to put her on the stand. Again, this retro-speculative reasoning (advanced, we must note, in the sworn testimony of an officer of the court) bizarrely ignores, and is utterly belied by, the actual course of the trial. David put Griffin’s mother on the stand. He tried to introduce her testimony establishing an alibi. He failed because of his disregard of professional duty. The tug on his conscience not to sponsor perjured testimony is revisionist history.
D.
Monica Tyson testified that she talked briefly with Griffin between 3:30 and 4:00 p.m., when Griffin was seated on his front porch in his pajamas. The state court ruled that this testimony “did not affirmatively demonstrate that [Griffin] was at home when the crime was committed.”
This last quote brings us to a legal error that complements the tortured logic of the state court’s factual analysis — an overly-strict legal standard for the second Strickland prong. The court stated that Griffin had to “demonstrate affirmatively that, but for trial counsel’s unprofessional errors, the result would have been different.” Strickland is not so demanding. If a petitioner establishes a reasonable probability that the result would have been different, prejudice is established. Moreover, a “reasonable probability” is simply “a probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694, 104 S.Ct. at 2068.
Our confidence in the outcome is very much undermined. Eyewitness identification evidence, uncorroborated by a fingerprint, gun, confession, or coconspirator testimony, is a thin thread to shackle a man for forty years. Moreover, it is precisely the sort of evidence that an alibi defense refutes best. Lawrence, 900 F.2d at 130; cf. Montgomery v. Petersen, 846 F.2d 407, 415-416 (7th Cir.1988) (where trial was “swearing match” between biased witnesses, counsel’s failure to call unbiased alibi witness was prejudicial); Harris, 894 F.2d at 879 (failure to call two witnesses who would have identified someone else as perpetrator prejudicial where prosecution relied on single eyewitness identification). This excerpt from the prosecutor’s closing argument, to which we referred earlier, demonstrates the narrow scope of the state’s case and the prejudice that resulted to Griffin from his inability to introduce alibi evidence (emphasis added):
The entire case hinges on the credibility of the witnesses. Who do you believe? Do you believe ... the security officers, who were trained as security officers in identification, who have positively identified Donald Gary Griffin as the individual responsible for shooting them on July 24th, 1983 or do you believe Donald Gary Griffin, who makes the self-serving statement, I was at home at the time that the alleged incident took place, I had been out all night, I did not return home until seven o’clock that morning, I was in my pajamas at 3:30 in the afternoon when friends of mine, none of which you heard from, come in and they went to a friend’s house?
The judgment of the district court is reversed, and the case is remanded with instructions to grant the writ. Unless the state elects to retry him within sixty days from the issuance of the writ, Griffin should be released.
REVERSED AND REMANDED WITH INSTRUCTIONS.
. A criminal defendant’s right to present witnesses is of course protected by the Compulsory Process Clause of the Sixth Amendment, and trial courts must take this right into account in sanctioning a defendant for noncompliance with a discovery rule. Since the Maryland courts considered Griffin’s direct appeal, the United States Supreme Court has held that the extreme sanction of preclusion is constitutional under some circumstances, and at least where a discovery rule is willfully violated by the defendant in hopes of gaining a tactical advantage. Taylor v. Illinois, 484 U.S. 400, 415, 108 S.Ct. 646, 656, 98 L.Ed.2d 798 (1988). In any event, Griffin has not asserted a Taylor-style compulsory process claim on collateral review in either the state or federal courts.
. Staples has never been formally charged with complicity in the robbery.
. Griffin’s mother corroborated that Tyson had spoken to her son, though she estimated the time as 3:20 to 3:30 p.m.
. Because of our disposition of Griffin’s ineffectiveness claim, we do not address his contention that the state court unconstitutionally punished him, through an increased sentence, for exercising his right to a jury trial.
Question: What is the total number of respondents in the 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".
PACIFIC STATES LIFE INS. CO. v. GILL et al. (CORN BELT BANK, Intervener).
No. 5131.
Circuit Court of Appeals, Seventh Circuit.
June 13, 1934.
E. R. Elliott, of Chicago, Ill., for appellant.
John H. Page, of Eockford, Ill., for appellee Genevieve P. Gill.
Shelby L. Large, of Eockford, Ill., for appellee Com Belt Bank.
Before ALSCIIULER, EVANS, and FITZTiENRY, Circuit Judges.
EVANS, Circuit Judge
(after stating tho facts as above).
Tho Chicago National Life Insurance Company, on September 2-8, 1981, borrowed $3-,009 of Gill and deposited as security a certain note and morigage for $12,500, known as the Schultz morigage. This loan became due in five days, and upon its maturity a new loan, payable in twenty-five days, was made for the same amount and secured by the same collateral. At the same time a cheek, payable to Gill, was drawn, by the Chicago National Life Insurance Company on the Saybrook Bank to pay the first loan. This cheek was certified by the cashier of said bank, but the hank closed before the check was presented. The first loan, however, was subsequently paid by the insurance company.
The instant suit involves a controversy arising out of the second loan and mo-re particularly the refusal of Gill to deliver to appellant the Schultz note and mortgage. The second note, and the cheek executed by Gill, bore date of October 6-, or three days subsequent to the actual transaction. This postdating was in order to make sure that the cheek drawn by the insurance company would be cashed upon presentation.
When the insurance company made good its first check, it desired the return of the mortgage security which had been deposited. Appellee Gill refused to turn over the security because of the second loan. An agreement was reached, however, which was reduced to writing, the important parts of which read as follows:
“Now, Therefore, it is agreed by and between the parties hereto that if and when said cheeks last described clear and the proceeds are deposited to the account of Second Party, said Second Party will cause to he released and forwarded by registered mail to First Party the following described collateral:
“A promissory note in the sum of $12,-500.00 signed by Annie L. and Louis Schultz, dated July 3, 1929.
“1 Trust Deed securing same, signed by the same parties, to the Chicago- National Life Insurance Co., Trustee.
“Two Interest Coupon notes #5 and #0 of the same date between the same parties, each in tho sum of $375.00.
“It is further agreed by and between the parties hereto that upon tho release of and delivery of the aforesaid Three Thousand * * * Dollar cheek returned ‘N.S.F.’ to Second Party herein, Second Party will return and deliver cancelled to First Party the aforesaid principal note in the sum of Thirty Two Hundred * * * Dollars.”
Ap-peliee Gill refused to carry out the written agreement by her made to return the collateral because, as she claims, she was induced to sign the agreement upon the false and fraudulent representations made at the time of its execution by the representativo of the insurance company. Upon this issue the court found:
“ * * * The Chicago National Life Insurance Company at said conference, through its agents stated to the defendant, Genevieve P. Gill, that it desired to discontinue and terminate the loan of October 6, 1931 and desired the return of the Schultz mortgage. The defendant, Genevieve P. Gill, would not agree to return the Schultz mortgage unless her check for $3-,000, dated October 6, 1931 had not been negotiated and could be returned to her. The Chicago National Life Insurance Company, through its agents then and there stated that said check had not been negotiated and was in possession of the Chicago National Life Insurance Company and would be returned immediately to tho defendant, Genevieve P. Gill. Acting upon this representation “ * * Gill signed the contract. 8 * * Tha representations concerning the negotiation, of the said Gill cheek and concerning the possession of it by the Chicago National Life Insurance Company were untrue in this, that said check had been negotiated and said check; was not in the possession of the Chicago- National Life Insurance Company and that said statements made by the Chicago National Life Insurance Company through its agent as aforesaid, were known to be untrue and were made with the intent to deceive the defendant, Genevieve P. Gill, and to obtain her signature to said contract known as Exhibit 1. The defendant, Genevieve P. Gill, executed said contract * * * in good faith relying on the truth of the statements so made to her as to the negotiation and as to the possession of said check.”
While the suit was pending the Corn Belt Bank was permitted to intervene, and it sought relief based upon the fact that it had paid the Gill cheek which the insurance company had falsely represented was in its possession and had not been transferred. Gill stopped payment on the cheek before it was presented to the bank upon which it was drawn, and the Com Belt Bank claimed it was a holder in due course and demanded payment from Gill of the amount represented by the check.
When the rather involved statement of facts is analyzed, little difficulty is experienced in disposing of the issues presented. In fact determination of this appeal turns largely upon the question of whether the evidence suppor’s the findings. The important findings, aside from the one above set forth, are:
“The collateral given by plaintiff as security for said second note of plaintiff, dated October 6,1931, and now in the hands of the Clerk of this Court still stands as security for the payment of said note.
“Plaintiff is indebted to Genevieve P. Gill for the principal and interest due under said Second note; and Genevieve P. Gill is liable to the Com Belt Bank for the amount of her cheek in the sum of $3,000.00 and dated October 6, 1931.”
In the absence of any agreement to the contrary it is clear that the Schultz mortgage was given to Gill as security for the loan. Gill’s check to the insurance company evidenced the loan. Until she is released from liability, her right to hold the security can not be successfully challenged.
The evidence, we think, clearly showed her liability on the outstanding check to the Com Belt Bank, which the said bank acquired in the usual course of business. She was therefore indebted to this bank, as the court found, and the decree in favor of said bank against her was proper. As she was indebted to the bank in this sum, which indebtedness arose by reason of the insurance company’s depositing the cheek, the insurance company’s loan from her remained in force and was unsatisfied.
Nor do we see force in the argument that the agreement changed the rights and liabilities of the parties. Gill’s signature thereto was obtained through false and fraudulent representations which she relied on and believed to be true. The evidence amply supports the finding of the court in this respect. Nor can we accept appellant’s contention that the agreement was a divisible one, only part of which should fall because of the fraud and the other part should stand. We agree with* the District Court that the agreement was an indivisible one and either stood or fell in to to.
The decree 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:
|
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.
Kathleen POWERS, etc., et al., Plaintiffs-Appellants Cross-Appellees, v. SOUTH CENTRAL UNITED FOOD & COMMERCIAL WORKERS UNIONS AND EMPLOYERS HEALTH & WELFARE TRUST, etc., Defendant-Appellee Cross-Appellant.
No. 82-2319.
United States Court of Appeals, Fifth Circuit.
Oct. 31, 1983.
Rehearing Denied Dec. 1,1983.
Eliot P. Tucker, Houston, Tex., for plaintiffs-appellants cross-appellees.
Jeffrey P. Clark, Milwaukee, Wis., J.D. Page, Houston, Tex., for defendant-appellee cross-appellant.
Before CLARK, Chief Judge, THORN-BERRY and RANDALL, Circuit Judges.
RANDALL, Circuit Judge:
The decisive issue presented by this appeal is the propriety of the defendant’s removal of this action to federal court from the Texas state court in which it was brought. Upon its removal, the federal district court denied the plaintiff’s motion to remand, and granted the defendant’s motion to dismiss. The court’s dismissal was premised on its finding that the plaintiff’s state law causes of action, which consisted of alleged violations of the Texas Deceptive Trade Practices-Consumer Protection Act, negligence, and fraud, were preempted by the Employment Retirement Income Security Act of 1974 (“ERISA”). Thus, the district court found that because the state court did not have original jurisdiction over the matter, the federal court did not have derivative jurisdiction under the removal statute. See, e.g., Lambert Run Coal Co. v. B. & O. R.R. Co., 258 U.S. 377, 382, 42 S.Ct. 349, 351, 66 L.Ed. 671 (1922). Because we conclude that this action does not arise under federal law, the state court did have jurisdiction over the case and the removal and resulting dismissal were improper; thus, we remand to the district court with directions to remand to the state court in which the action originated.
I. FACTS AND PROCEDURAL BACKGROUND.
The defendant in this case, South Central United Food & Commercial Workers Unions and Employers Health and Welfare Trust (the “Plan”), is a jointly trusteed employee health and welfare benefit plan, maintained in accordance with the Labor Management Relations Act (the “Taft-Hartley Act”), 29 U.S.C. § 141 et seq. (1976 & Supp. V 1981), and subject to ERISA’s regulatory scheme, 29 U.S.C. § 1001 et seq. (1976 & Supp. V 1981). The plaintiff, Kathleen Powers, is a participant in the Plan, and her son is a beneficiary of the Plan. In 1981, Powers sought to have her son hospitalized at the Deer Park General Hospital. Because Powers was unsure whether the Plan would cover expenses incurred at Deer Park, a hospital employee telephoned the Plan. The Plan employee with whom the Deer Park employee spoke represented that the Plan would provide coverage. Powers hospitalized her son at Deer Park, where his expenses aggregated $10,534.60. Upon receiving bills for this amount, the Plan denied coverage and refused to pay. It is undisputed that the Plan does not provide coverage for the expenses at issue, because Deer Park does not fall within the Plan’s definition of “hospital.”
Powers brought suit in state court, alleging that the Plan’s misrepresentation of coverage constituted negligence and fraud, and violated the Texas Deceptive Trade Practices-Consumer Protection Act (“DTPA”), Tex.Bus. & Com.Code Ann. § 17.41 et seq. (Vernon 1982 Supp.). The Plan petitioned for removal to federal court under 28 U.S.C. § 1441 (1976), asserting that Powers’ claim was preempted by ERI-SA and by the Taft-Hartley Act; thus, the action “arose under” federal law. Powers filed a motion to remand the case to state court, alleging that no federal question was presented by her complaint.
The district court concluded that Powers’ complaint stated a claim under ERISA, that her state claim was preempted by ERISA, and that, because the claim was one falling within the exclusive jurisdiction of the federal courts and could not have been brought originally in state court, the federal court did not have derivative removal jurisdiction.
The court’s finding was based on its determination that the Plan employee who made the misrepresentation concerning coverage was a Plan fiduciary as defined in 29 U.S.C. § 1002:
[One who] exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets.
Section 1104(a) provides that a plan fiduciary must discharge his or her duties
solely in the interest of the participants and beneficiaries ... with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims....
Because section 1132(a)(3) authorizes civil actions by plan participants or beneficiaries to enforce any of ERISA’s provisions, the district court reasoned, Powers’ suit stated a violation of the standard of care provided by section 1104(a); thus her claim stated a federal question. The enforcement provisions of ERISA provide that the state and federal courts shall have concurrent jurisdiction over actions:
[T]o recover benefits due to him under the terms of his plan, or to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan....
29 U.S.C. § 1132(a)(1)(B). The federal courts have exclusive jurisdiction over all other civil actions. 29 U.S.C. § 1132(e)(1). Powers’ claim does not fall within section 1132(a)(1)(B), because it is undisputed that the Plan does not cover the expenses in controversy. Thus, the district court concluded that the case is one within the exclusive jurisdiction of the federal courts under section 1132(e)(1). Our disposition of this appeal precludes our reaching the merits of the case or the district court’s determinations thereon.
II. REMOVAL.
The basic removal statute, 28 U.S.C. § 1441, provides:
(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
Moreover, section 1446 provides:
(b) The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, ...
28 U.S.C. § 1446(b) (1976 & Supp. V 1981) (emphasis added). In construing the removal statutes, the Supreme Court has mandated a “strict construction” approach, in recognition of the congressional intent to restrict the jurisdiction of federal courts on removal. See American Fire & Casualty Co. v. Finn, 341 U.S. 6, 10, 71 S.Ct. 534, 538, 95 L.Ed. 702 (1951) (“The Congress, in [§ 1441], carried out its purpose to abridge the right of removal”); Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941) (referring to precursor to § 1441); see also La Chemise Lacoste v. Alligator Co., 506 F.2d 339, 344 (3d Cir.1974), cert. denied, 421 U.S. 937, 95 S.Ct. 1666, 44 L.Ed.2d 94 (1975).
The “original jurisdiction” to which section 1441 refers can rest with the federal courts because of diversity of citizenship between the parties, see 28 U.S.C. § 1332 (1976), because the claim “arises under” federal law, see 28 U.S.C. § 1331 (1976 & Supp. Y 1981), or by virtue of some other explicit grant of jurisdiction, see, e.g., 28 U.S.C. § 1337 (discussed infra). In the instant case there is no diversity of citizenship; thus, for removal to have been proper under section 1441, our inquiry must focus on whether Powers’ complaint stated a claim “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
III. DISCUSSION.
We begin by noting that the “arising under” component of federal subject matter jurisdiction has been exhaustively analyzed by courts and commentators alike. The Supreme Court has recently noted that “when considered in light of § 1441’s removal jurisdiction, the phrase ‘arising under’ masks a welter of issues regarding the interrelation of federal and state authority and the proper management of the federal judicial system.” Franchise Tax Board of California v. Construction Laborers Vacation Trust for Southern California, - U.S. -, 103 S.Ct. 2841, 2846, 77 L.Ed.2d 420 (1983). While the precise boundaries to which federal jurisdiction extends are not matters upon which all agree, certain principles are firmly established, and none more so than the “well-pleaded complaint” rule. As stated by the Supreme Court in Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 724, 58 L.Ed. 1218 (1914), that doctrine provides: See also Franchise Tax Board, supra; Pan American Petroleum Corp. v. Superior Court, 366 U.S. 656, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961); Gully v. First National Bank in Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). The well-pleaded complaint rule dictates that “a defendant may not remove a case to federal court unless the plaintiff’s complaint establishes that the case ‘arises under’ federal law.” Franchise Tax Board, 103 S.Ct. at 2847 (emphasis in original). It is insufficient for jurisdictional purposes that the plaintiff asserts that federal law deprives the defendant of a possible defense, see Taylor v. Anderson, supra, and Mottley, supra, or that the defendant’s anticipated defense would not serve to defeat the plaintiff’s claim, see Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511 (1894). Likewise, neither the defendant’s answer nor its petition for removal may serve as the basis for federal jurisdiction to the extent that each may assert that the plaintiff’s claim “arises under” federal law. See Franchise Tax Board, supra.
[Wjhether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute ... must be determined from what necessarily appears in the plaintiff’s statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation or avoidance of defenses which it is thought the defendant may interpose.
Further, and more pertinent here, an asserted or anticipated defense predicated on federal preemption of state law is, in jurisdictional terms, a defense like any other, and will not serve to invoke federal jurisdiction. See Franchise Tax Board, supra (ERISA); Pan American Petroleum Corp. v. Superior Court, supra (Natural Gas Act); Trent Realty Associates v. First Federal Savings & Loan Ass’n of Philadelphia, 657 F.2d 29 (3d Cir.1981) (Home Owner’s Loan Act); First National Bank of Aberdeen v. Aberdeen National Bank, 627 F.2d 843 (8th Cir.1980) (en banc) (National Bank Act); State of Washington v. American League of Professional Baseball Clubs, 460 F.2d 654 (9th Cir.1972) (antitrust).
Franchise Tax Board is particularly applicable to the case at bar. There, a state agency (the “Board”) sought to collect certain delinquent state taxes by levying on money held by a benefit plan for its members. The Board filed suit in state court, asserting its levy authority by virtue of a state statute empowering the Board to enforce the state’s tax law, and seeking a declaratory judgment that ERISA did not preempt the Board’s power to levy. The plan removed the action to federal court, contending that ERISA preempted the Board’s statutory levy power as against an ERISA-regulated plan. The Supreme Court found that the federal courts lacked original subject matter jurisdiction, and remanded the case for remand to the state court.
The Court’s analysis of the propriety of removal in Franchise Tax Board rested fundamentally on the “powerful doctrine” of the well-pleaded complaint rule as it has developed from Taylor, Mottley, and Gully. See Franchise Tax Board, 103 S.Ct. at 2846-48. With regard to the Board’s first cause of action, to enforce its levy, the Court found that:
[A] straightforward application of the well-pleaded complaint rule precludes original federal court jurisdiction. California law establishes a set of conditions, without reference to federal law, under which a tax levy may be enforced; federal law becomes relevant only by way of a defense to an obligation created entirely by state law, and then only if appellant has made out a valid claim for relief under state law.... The well-pleaded complaint rule was framed to deal with precisely such a situation.... [A] case may not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiff’s complaint, and even if both parties admit that the defense is the only question truly at issue in the case.
Id. at 2848 (emphasis added).
Similarly, in Pan American Petroleum Corp. v. Superior Court, supra, the Court considered the merits of an attack on the jurisdiction of a state court. The defendants asserted, in a contract price dispute, that the Natural Gas Act, 15 U.S.C. § 717 et seq. (1976), superseded by the Emergency Natural Gas Act of 1977,15 U.S.C. § 717 et seq. (Supp. V 1981), preempted state law on the issue of wholesale natural gas prices. The Supreme Court had, in an earlier decision, confirmed the preemptive power of the Natural Gas Act. See Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954). Nonetheless, in Pan American Petroleum both the Delaware and United States Supreme Courts found that the federal courts lacked original jurisdiction, since the Natural Gas Act arose only as a defense to the plaintiff's state law contract claim:
[Questions of exclusive federal jurisdiction and ouster of jurisdiction of state courts are, under existing jurisdictional legislation, not determined by ultimate substantive issues of federal law. The answers depend on the particular claims a suitor makes in a state court — on how he casts his action. Since “the party who brings a suit is master to decide what law he will rely upon,” The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 [33 S.Ct. 410, 411, 57 L.Ed. 716] [1913], the complaints in the Delaware Superior Court determine the nature of the suits before it.
366 U.S. at 662, 81 S.Ct. at 1307. The settled preemptive effect of the Natural Gas Act, the Court found, did not alter the jurisdictional structure at issue:
“Exclusive jurisdiction” is given the federal courts but it is “exclusive” only for suits that may be brought in the federal courts. Exclusiveness is a consequence of having jurisdiction, not the generator of
jurisdiction because of which state courts are excluded.
Id. at 664, 81 S.Ct. at 1308.
We think that the analysis employed in Franchise Tax Board and Pan American Petroleum, in light of Mottley, Gully, and their progeny, is clearly dispositive in the instant case. Its application is a simple exercise. Powers alleged no federal cause of action, raised no federal issue, and relied on no federal statute. Rather, she seeks relief based on the Texas DTPA, negligence, and fraud. ERISA’s preemptive effect or the lack thereof arises solely on the basis of the Plan’s pleadings and petition for removal. As an initial proposition, therefore, the “law that creates the cause of action” is state law, and original federal jurisdiction is lacking unless Powers’ claim falls victim to an exception to the well-pleaded complaint rule.
An independent and established corollary of the well-pleaded complaint doctrine provides that a plaintiff may not defeat removal by fraudulent means or by “artfully” failing to plead essential federal issues in the complaint. See Franchise Tax Board, 103 S.Ct. at 2853; Avco Corp. v. Aero Lodge No. 7S5, International Ass’n of Machinists, 376 F.2d 337, 339-40 (6th Cir. 1967), aff’d, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), Fraudulent or “artful” pleading frequently arises in the context of unnecessary joinder of non-diverse parties in an attempt to defeat removal based on diversity jurisdiction. See, e.g., Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921); Wecker v. National Enameling & Stapling Co., 204 U.S. 176, 27 S.Ct. 184, 51 L.Ed. 430 (1907); Covington v. Indemnity Insurance Co. of North America, 251 F.2d 930 (5th Cir.), cert. denied, 357 U.S. 921, 78 S.Ct. 1362, 2 L.Ed.2d 1365 (1958). We note the inapplicability of these eases here.
Not all cases of “artful” pleading involve diversity jurisdiction, however. In Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981), the Supreme Court considered the propriety of the district court’s denial of the plaintiff’s motion to remand an action removed on the basis of federal question jurisdiction. In Moitie, the plaintiff originally brought suit in federal court, alleging violations of the federal antitrust laws. When the suit was dismissed for failure to state a claim, the plaintiff refiled in state court, alleging antitrust violations based on the same transactions and theories set forth in the original complaint, but couched solely in terms of state law. The Supreme Court sanctioned the district court’s refusal to remand the case to state court upon its removal to federal court, holding that the plaintiff’s “artful pleading” was merely a device employed to avoid explicitly raising “essentially federal law claims.” 452 U.S. at 397 n. 2, 101 S.Ct. at 2427 n. 2.
Clearly, Moitie presented a problem different from the one at hand. Powers has not evidenced a desire to proceed under federal law; rather, she has consistently and vociferously attempted to avail herself of the state forum and relief to which she asserts entitlement. That her claims may be “essentially federal” is a proposition resting on the assumption that ERISA totally preempts her state law claims. As we have discussed, federal preemption of state law is a defense to Powers’ claim and, while its assertion may well interject a federal question into this case, not every federal question presented in a case means that the case “arises under” federal law for purposes of original jurisdiction under section 1331. See Franchise Tax Board, 103 S.Ct. at 2847; Pan American Petroleum, 366 U.S. at 664, 81 S.Ct. at 1308; Mottley, 211 U.S. at 152, 29 S.Ct. at 43. Only when the plaintiff’s complaint clearly establishes that the claim is one necessarily arising under federal law will the federal issue suffice to support removal to federal court. See, e.g., Federated Department Stores, Inc. v. Moitie, 452 U.S. at 406-08, 101 S.Ct. at 2431-2432, 2433 (Brennan, J., dissenting); Trent Realty Associates, 657 F.2d at 35. As the Third Circuit noted in Trent Realty:
In contrast to exclusive federal jurisdiction, preemption by federal statute or regulation may not be an unavoidable issue. Experienced litigators may almost certainly expect that a defendant will assert federal preemption if that doctrine supports its position, but this anticipated defense is indistinguishable for this purpose from the defense that federal law precludes maintenance of the state claim. Because the unavailability of removal in the latter situation is solidly entrenched, ... we can find no basis for removal jurisdiction in the anticipated defense of federal preemption.
Id. (citing Mottley, supra). That the preemption defense is not merely anticipated but actually articulated by the defendant, as in the instant case, is a distinction without a difference. See Pan American Petroleum, 366 U.S. at 662-64, 81 S.Ct. at 1307-1308.
The Plan also asserts that removal jurisdiction properly rested with the federal court because Powers’ complaint presented a claim preempted by the Taft-Hartley Act, 29 U.S.C. § 141 et seq. The district court, relying on our holding in Woodfork v. Marine Cooks & Stewards Union, 642 F.2d 966, 975 (5th Cir.1981), that the Taft-Hartley Act does not preempt state regulation of pension law, found that Powers’ complaint did not “necessarily present[] a federal question under the Taft-Hartley Act.” We do not comment on the correctness of this determination, because the lack of removal jurisdiction precludes our doing so. Rather, that the Plan’s assertion of Taft-Hartley preemption is subject to the same defects discussed above with regard to the issue of ERISA preemption is dispositive of this argument.
Finally, the Plan asserts that, because both ERISA and Taft-Hartley are acts of Congress regulating interstate commerce, Powers’ claim falls within the original jurisdiction of the federal courts by virtue of 28 U.S.C. § 1337(a) (1976 & Supp. V 1981), which provides in pertinent part:
The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies ....
Again, this argument must yield to our analysis with regard to the ERISA preemption issue. A case does not “arise under” federal law for purposes of section 1337(a) where the act of Congress regulating commerce is interjected into the suit as a defense. See Franchise Tax Board, 103 S.Ct. at 2845 n. 7; Trent Realty Associates, 657 F.2d at 35.
IV. CONCLUSION.
In summary, we hold that a defense of federal preemption of state law claims does not suffice to bring a case within the original jurisdiction of the federal courts. The extent to which a federal question is raised by such a defense will not serve to define the action as one “arising under” federal law for purposes of removal.
The decision of the district court is REVERSED and the case REMANDED for proceedings consistent with this opinion.
. See, e.g., Franchise Tax Board of the State of California v. Construction Laborers Vacation Trust for Southern California, - U.S. -, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983); Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 94 S.Ct. 1002, 39 L.Ed.2d 209 (1974); Pan American Petroleum Corp. v. Superior Court, 366 U.S. 656, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961); Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); Gully v. First National Bank in Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936); Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577 (1921); Hopkins v. Walker, 244 U.S. 486, 37 S.Ct. 711, 61 L.Ed. 1270 (1917); Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218 (1914); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908); Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511 (1894); Osborn v. Bank of the United States, 9 Wheat. 738, 6 L.Ed. 204 (1824); Trent Realty Associates v. First Federal Savings & Loan Ass’n of Philadelphia, 657 F.2d 29 (3d Cir.1981); First National Bank of Aberdeen v. Aberdeen National Bank, 627 F.2d 843 (8th Cir.1980) (en banc) (and cases cited therein); La Chemise Lacoste v. Alligator Co., 506 F.2d 339 (3d Cir.1974), cert. denied, 421 U.S. 937, 95 S. Ct. 1666, 44 L.Ed.2d 94 (1975); State of Washington v. American League of Professional Baseball Clubs, 460 F.2d 654 (9th Cir.1972); T. B. Harms v. Eliscu, 339 F.2d 823 (2d Cir. 1964); C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure: Jurisdiction §§ 3562-3567 (1975); P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, The Federal Courts and the Federal System 889 (2d ed. 1973); Aycock, Introduction to Certain Members of the Federal Question Family, 49 N.C.L.Rev. 1 (1970); Bergman, Reappraisal of Federal Question Jurisdiction, 46 MichX.Rev. 17 (1946); Chadboum & Levin, Original Jurisdiction of Federal Questions, 90 U. Pa.L.Rev. 639 (1942); Cohen, The Broken Compass: The Requirement that a Case Arise “Directly” Under Federal Law, 115 U.Pa.L.Rev. 890 (1967); Forrester, The Nature of a Federal Question, 16 Tul.L.Rev. 363 (1942); Fraser, Some Problems in Federal Question Jurisdiction, 49 Mich.L.Rev. 73 (1950); Mishkin, The Federal “Question” in the District Courts, 53 Colum.L.Rev. 157 (1953).
. See generally C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction §§ 3562-3567 (1975).
. With regard to the Board’s second cause of action, for declaratory relief under the state declaratory judgment statute, the Court noted that although ERISA was explicitly invoked by the Board in its complaint, Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950), mandated a finding of lack of federal jurisdiction. The Court held that federal courts do not have original or removal jurisdiction when a federal question is presented in an action under a state declaratory judgment statute. See Franchise Tax Board, supra, 103 S.Ct. at 2851.
. American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 586, 60 L.Ed. 987 (1916).
. With regard to the instant action, we note that although it was disclosed during oral argument that Powers has filed a parallel suit in federal court, she has done so to avoid running afoul of the statute of limitations should our decision preclude her proceeding further in state court. That her federal suit evidently alleges violations of ERISA based on the same set of circumstances involved in the instant case does not bring her within Moitie, however, because her federal suit is merely a tactical manuever, instituted after her state court filing, to protect herself. This is clearly and substantially different from the situation presented in Moitie.
. We note that the instant case is factually and legally distinguishable from our holding in In re Carter, 618 F.2d 1093 (5th Cir.1980), cert. denied sub nom., Sheet Metal Workers v. Carter, 450 U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981). In Carter, the plaintiffs complaint necessarily presented a federal claim. We noted there that “upon removal the removal court should inspect the complaint carefully to determine whether a federal claim is presented, even if the plaintiff has couched his pleading exclusively in terms of state law.” Id. at 1101. In the case at hand, there is no standpoint from which Powers’ complaint can be viewed as presenting a federal claim. We reiterate that to the extent federal preemption arises as an issue, it is a defense to Powers’ state law claims and can not serve as the basis for original federal jurisdiction.
. We note that our determination does not preclude an eventual federal forum on the preemption issue. As the Supreme Court stated in Franchise Tax Board, “[Ojf course, the absence of original jurisdiction does not mean that there is no federal forum in which a preemption defense may be heard. If the state courts reject a claim of federal preemption, that decision may ultimately be reviewed on appeal from this Court.” 103 S.Ct. at 2848 n. 12.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_usc1
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
RATLIFF v. CHESAPEAKE & O. RY. CO.
No. 8356.
Circuit Court of Appeals, Sixth Circuit.
Dec. 13, 1940.
A. F. Childers, of Pikeville, Ky., for appellant.
LeWright Browning, of Ashland, Ky., for appellee.
Before HICKS, SIMONS, and ARANT, Circuit Judges,
ARANT, Circuit Judge.
Appellant, as administrator, brought suit in the Circuit Court of Pike County, Kentucky, to recover damages resulting from his wife’s death, alleged to have been caused by appellee’s negligence. The suit was removed to the United States District Court on the ground of diversity of citizenship. Appellee specifically denied each of appellant’s allegations and alleged that the death was caused solely by deceased’s negligence. At the close of appellant’s opening statement to the jury, the Court, upon motion, directed a verdict in favor of appellee. Appellant challenges the validity of that ruling and the judgment entered upon the verdict. On this appeal, the facts stated and such inferences as may reasonably be drawn therefrom must be considered proved.
Appellee has a branch railroad in Pike County, Kentucky, on which there has been for some twenty years a flag stop known as Ratliff. There is no depot of any kind at this stop,' but there is an elevated flat cinder surface, which appellant calls a “platform,” on a level with the top of the tracks, where passengers alight from and board trains. Originally, the cinders were enclosed in a rectangular frame of 8" x 8" timbers, which was 18 or 20 inches from the ends of the ties. The timbers eventually rotted, however, and, six months or a year before Mrs. Ratliff was killed, appellee, by spreading a carload of cinders, leveled and enlarged the surface, filling in the space right up to the rails. From this “platform” passengers signalled trains as they approached. The engineer usually indicated his recognition of the signal by two short blasts of the whistle.
Appellant and his wife lived about a hundred yards from the station. On the morning of March 14, 1937, Mrs. Ratliff left home, intending to board the 6:27 train for Pineville. It was after daylight. She was on the platform as the train approached, “trying to flag it and going towards it.” For some reason she was not observed, though the engineer could 'have seen her some thousand feet away. No effort was made to stop the train, the whistle was not blown, -and the bell not rung; but the train “came out of there at the same rate of speed that they did at a place where there was no station.” Mrs. Ratliff was struck by a big square timber across the front of the engine, known as the crossbeam, which projects out over the rails a foot and a half or two feet on each side. She died instantly!
Counsel for appellant in his opening statement said: “This woman in trying to flag that train had walked up this platform here and got in range of that cross-head, evidently thinking that she was safe anywhere on the platform, and she had been all the time since this platform had been built and maintained there for many years, and people on it were clear of trains; but on this occasion, in trying to flag that train she got too close on the platform and was struck by this large wooden beam in front of the locomotive.”
The alleged proximate cause of dece'dent’s death was appellee’s negligent construction of “said platform too near the railroad track and so close thereto that persons upon said platform and at a place where they had a right to be, could be struck by passing trains,” and running the train “at a high, dangerous and excessive rate of speed by said station, without ringing a bell or blowing a whistle or giving any signal of its approach, and without keeping aiiy lookout for persons on or about said station, and without making any effort to stop for the purpose of taking on passengers, or for any purpose, and while * * * decedent was at a place on said platform where she had a right to be, and while using reasonable care for her own safety, and for the purpose of going aboard said train.”
Appellant has characterized the so-called platform as a “death trap,” and has argued that it may not be assumed that the deceased knew any part of a locomotive engine extends over the rail or that she might be hit by a passing train while standing on any part of the “platform.” Yet she had' lived for years within about a hundred' yards of the spot and could not have been unfamiliar with the platform and the trains, that passed daily. Moreover, it was daylight when the unfortunate- accident occurred, and if she was not already familiar with both the trains and the new “platform,” she could not have failed to see, as the train ' approached, that' she would be struck if she did not move farther away from the track. Appellant asserts, however, that she was unaware that there could be any danger if she stood on any part of the “platform” while a train was passing and contends that it was appellee’s duty to have so constructed the “platform” that she could not stand on any part of it and be struck by any part of a passing train. The duties placed by the law upon public carriers of passengers are onerous but they assume that those who have eyes to see will use them.
The primary purpose of the “platform” is to provide a smooth surface for the convenience and safety of the public in boarding and- alighting from trains. It is not claimed that the “platform” was defective in any respect except that there was no space between it and the track. None of the cases cited by appellant holds that such a facility as is here involved, — • entirely adequate and safe when used as ordinary persons would use it, — is unsafe merely because it does not prevent careless persons from putting themselves in positions of danger. There was no negligence in the construction and maintenance of the “platform.”
Nor was failure to blow the whistle or ring the bell negligence proximately contributing to the death, since appellant’s counsel stated that she saw the train and was signalling it. Nor was the engineer’s failure to keep a lookout or slow down or stop a proximate cause. Had he seen Mrs.' Ratliff, he might have stopped the train, but she had no reason to expect that the train would stop before it reached the spot where she was standing; the engine always passed that place, when making a stop, to bring the passenger coaches alongside the “platform.” It was her failure to move back from the track, as anyone exercising any care at all would have done, that caused her death. Had the engineer seen her when she first signalled and had he then noted her position of danger, he would have been entitled to assume that she would make the step backward to safety before the engine reached her. By the time he could have known that she was not aware of her danger, or that she was not going to extricate herself therefrom, it would have been too late to stop his train before the engine reached her,
A jury that found all the facts stated in appellant’s opening statement could not have found that appellee was guilty of any negligence that proximately contributed to the deceased’s death; but, if it .had, and had not also found that the deceased was contributorily negligent, it would have been the judge’s duty, upon proper motion, to enter judgment for appellee notwithstanding the verdict.
We think the Kentucky decisions abundantly support this conclusion.
In Bruff v. Illinois Central R. R. Co., 121 S.W. 475, 477, 24 L.R.A.,N.S., 740, the appellant was injured at a flag station in the nighttime, while attempting to signal an approaching train. He was standing so close to the track that his outstretched arm was struck by some part oí the train. In denying recovery, the Court of Appeals of Kentucky said: “Appellant having placed himself in a position of peril, and having stayed there from whatever cause until it was too late to extricate himself and not warning those in charge of the train in time to allow them an opportunity to stop or check the train to save him, his injury is the result of his own act, not their negligence. These facts presented only a question of law; that is, admitting them as true, and deducing from them every possible reasonable inference was there actionable negligence on the part of the railroad operatives? The trial court thought there was not. So think we.”
In another case, plaintiff, with a number of other passengers intending to board defendant’s train, walked between the tracks from the waiting room to the place where passengers usually boarded the train. Plaintiff got too close to the track and was struck by the approaching train. The trial judge refused to direct a verdict and the jury found for the plaintiff. Holding that plaintiff’s negligence barred recovery, the Court of Appeals said: “Not only was appellee told that the train was approaching, but she admits that she saw the engine when it was 250 or 300 yards away. The headlight on the engine was burning, and all that she had to do in order to see the engine was to use her eyes. * * * Appellee had plenty of room in which to walk, and, as before stated, no one pushed or shoved her into the path of the train. In its final analysis the case is one where appellee, with plenty of room in which to walk, failed to use ordinary care to keep out of the way of the engine which she knew was approaching, and could not fail to see. It follows that appellant was also entitled to a peremptory instruction on the ground that appellee was guilty of contributory negligence as a matter of law.” Louisville & Nashville R. R. Co. v. Kilburn, 272 Ky. 44, 113 S.W.2d 844, 847.
See also Louisville & Nashville R. R. Co. v. Fentress’ Adm’r, 166 Ky. 477, 179 S.W. 419; Louisville & Nashville R. R. Co. v. Taaffe’s Adm’r, 106 Ky. 535, 50 S.W. 850; Louisville & Nashville R. R. Co. v. Trower’s Adm’r, 131 Ky. 589, 115 S.W. 719, 20 L.R.A.,N.S., 380.
Judgment 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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songer_appel1_1_3
|
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.
LAKOTA GIRL SCOUT COUNCIL, INC., Appellee, v. HAVEY FUND-RAISING MANAGEMENT, INC., and Francis P. Havey, Appellants.
Nos. 74-1262, 74-1263.
United States Court of Appeals, Eighth Circuit.
Submitted Dec. 10, 1974.
Decided June 27, 1975.
Robert E. Dreher, Des Moines, Iowa, for appellants.
Tito W. Trevino, Fort Dodge, Iowa, for appellee.
Before LAY, BRIGHT and WEBSTER, Circuit Judges.
WEBSTER, Circuit Judge.
Havey Fund-Raising Management, Inc., and Francis P. Havey appeal from a jury verdict and a judgment awarding damages against them for breach of a contract to provide fund-raising services to the plaintiff, Lakota Girl Scout Council, Inc. They do not challenge the jury’s finding that the contract was breached, but contend instead that (1) the District Court lacked personal jurisdiction over Francis P. Havey, founder and chief executive officer of Havey Fund-Raising Management, Inc.; (2) there was insufficient evidence to find Francis P. Havey liable as the alter ego of the corporation, the entity with which plaintiff Lakota Girl Scout Council, Inc., had contracted; and (3) the court erroneously allowed the jury to consider lost profits as a measure of damages and improperly admitted opinion evidence in support thereof. We affirm the judgment of the District Court.
In 1968, the Lakota Girl Scout Council decided to hold a fund-raising drive, the proceeds of which would be used to develop year-around facilities at its 175-acre campsite near Dayton, Iowa. Four professional fund-raising firms, including Havey Fund-Raising, Inc., were considered to coordinate the campaign. Ha-vey Fund-Raising conducted a survey and informed the Council that it was feasible to raise $325,000 — $350,000 for the project. The Council thereupon set its goal at $345,000 and selected Havey Fund-Raising, Inc., to assist it.
On October 1, 1968, the parties executed a contract: Havey Fund-Raising was to provide professional assistance to help the Council reach its goal in return for a fee of $28,000; the Havey firm did not guarantee that any money would in fact be raised. When Havey Fund-Raising failed to perform in accordance with the contract and the campaign fell far short of its goal, the Council instituted this action, seeking various enumerated damages.
In the course of discovery, the Council determined to its satisfaction that Havey Fund-Raising, Inc., was the alter ego of Francis P. Havey and accordingly sought to join Havey as a party defendant. The District Court allowed Havey to be joined, pursuant to Fed.R.Civ.P. 20, and later denied Havey’s motion to quash service for want of in personam jurisdiction.
The case was tried and submitted to a jury, which awarded the Council $35,000 in damages and, in response to a special interrogatory, found the corporation to be Havey’s alter ego. The District Court entered judgment against both defendants for $35,000, “piercing the corporate veil” of Havey Fund-Raising, Inc., on the basis of the jury’s answer to the special interrogatory.
I.
Jurisdiction and Piercing Corporate Veil
Because the issues of in personam jurisdiction over Francis P. Havey and piercing the corporate veil of Havey Fund-Raising, Inc., are interrelated, we will deal with them together.
This is a diversity case. It is well established that in diversity cases a federal district court must apply the law of the forum state to determine the persons over whom it may assert in person-am jurisdiction. Fed.R.Civ.P. 4(e) and (f); see Marsh v. Kitchen, 480 F.2d 1270 (2d Cir. 1973). The Iowa statute applicable to the instant case, I.C.A. § 617.3, provides that the execution of a contract to be performed in Iowa with a resident of Iowa makes a non-resident amenable to the jurisdiction of the Iowa courts. Appellants do not challenge the actual execution of such a contract by the corporation, nor do they contend that the procedural requirements with regard to service of process and notice were not complied with. Rather, appellants argue that Francis P. Havey, as distinguished from the corporation, lacked the minimum contacts with Iowa necessary to the assertion of in personam jurisdiction over him. See International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). This argument is wide of the mark; if the corporation is Havey’s alter ego, its contacts are his and due process is satisfied.
A.
Long-arm derivative jurisdiction over a foreign parent corporation has been found where the parent so controlled and dominated the activities of its resident subsidiary that the latter’s separate corporate existence was in effect disregarded. Thus, in Fisher v. First National Bank, 338 F.Supp. 525, 529 (S.D.Iowa), appeal dismissed, 466 F.2d 511 (8th Cir. 1972), Judge Stuart accurately summarized the law:
A corporation is not doing business in a state merely by the presence of its wholly owned subsidiary. Cannon Manufacturing Co. v. Cudahy Packing Co. (1925), 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634. However, the fiction of corporate entity may be disregarded, where one corporation is so organized and controlled and its affairs are so conducted that it is, in fact, a mere instrumentality or adjunct of another corporation. Even a non-owned corporation may act as agent for another corporation. No all embracing rule has been laid down under which the relationship between two corporations may be determined. The circumstances in each case must be examined to determine whether a corporation through the activities of another corporation has subjected itself to jurisdiction in a state under its long arm statute. Frazier, III v. Alabama Motor Club, Inc. (5th Cir., 1965), 349 F.2d 456, 459; Industrial Research Corporation v. General Motors Corp. (N.D. Ohio, 1928), 29 F.2d 623, 625.
See Karlin v. Avis, 326 F.Supp. 1325 (E.D.N.Y.1971) (piercing the corporate veil, if only to establish jurisdiction over parent corporation, is a drastic approach authorized only in the most extreme situations); cf. Caesar’s World, Inc. v. Spencer Foods, Inc., 498 F.2d 1176, 1181 n.6 (8th Cir. 1974).
While we find no cases within this circuit which apply this principle to corporations which are the alter ego of a dominant individual shareholder, there is adequate support from other jurisdictions.
In International Controls Corp. v. Vesco, 490 F.2d 1334 (2d Cir.), cert. denied, 417 U.S. 932, 94 S.Ct. 2644, 41 L.Ed.2d 236 (1974), the Second Circuit held that a district court could assert jurisdiction over a corporation when it had jurisdiction over its dominant shareholder by using the court’s equitable power to pierce the corporate veil. In Sheard v. Superior Court, 40 Cal.App.3d 207, 114 Cal. Rptr. 743, 745 (1974), the court addressed the precise question here presented and said:
Petitioners contend that since they at no time resided in the State of California and owned no property or did any business in California service upon them outside the state was ineffective to give respondent court in personam jurisdiction over them. Real party, in turn, contends that since Sheard has admitted doing business in this state and the complaint alleges that Sheard is the alter ego of petitioners, who are its stockholders, respondent court has jurisdiction over both Sheard and petitioners.
With particular respect to real party’s contention we observe that it has been held in this state that if a subsidiary corporation acts as an agent of the parent corporation or is so controlled by the parent as to justify disregard of the separate entity jurisdiction over the subsidiary will support jurisdiction over the parent. (Empire Steel Corp. v. Superior Court, 56 Cal.2d 823, 832, 17 Cal.Rptr. 150, 366 P.2d 502, see also Rest.2d Conflict of Laws, § 52; com. (b).) Upon analogy we are persuaded that where a corporation is the alter ego of the stockholders so as to justify disregard of the corporate entity jurisdiction over the corporation will support jurisdiction over the stockholders. (See Associated Vendors, Inc. v. Oakland Meat Co., 210 Cal.App.2d 825, 836-842, 26 Cal.Rptr. 806.)
B.
Given these principles, the propriety of the District Court’s assertion of jurisdiction in the instant ease ultimately depends upon the propriety of its decision to pierce the corporate veil of Ha-vey Fund-Raising, Inc.
Evidence was introduced at trial showing that (1) Francis P. Havey is and has always been the sole shareholder of Ha-vey Fund-Raising, Inc.; (2) Havey was the firm’s sole incorporator and his capital contribution was $550.00; (3) Havey, and no one else, gave loans to and borrowed money from the corporation; (4) Havey and his wife owned the building where the company was headquartered and received rental payments from the company; (5) the company purchased a Lincoln automobile for Havey’s business use which Havey also used for incidental personal business. In short, the evidence was overwhelming that Havey dominated and controlled the business and treated it as his own.
Judge Hanson submitted a special interrogatory to the jury on this subject in which he stated that a corporation’s existence is presumed to be separate, but can be disregarded if (1) the corporation is undercapitalized, (2) without separate books, (3) its finances are not kept separate from individual finances, individual obligations are paid by the corporation, (4) the corporation is used to promote fraud or illegality, (5) corporate formalities are not followed or (6) the corporation is merely a sham. In response, the jury found the corporation to be the alter ego of Francis P. Havey.
Judge Hanson’s interrogatory properly enumerates the factors that may be considered in determining if a corporation is merely the alter ego of its dominant shareholder. See 1 W. M. Fletcher, Cyclopedia of the Law of Private Corporations § 41.3 (1974). There was ample evidence from which the jurors could find that the corporation was Havey’s alter ego; their finding is supported by substantial evidence and the determination of the trial judge to hold Havey liable by piercing the veil was not an abuse of his equity power.
II.
Damages
The evidence submitted by the Council to prove breach of contract centered upon the failure of Havey Fund-Raising to provide the degree of assistance and supervision promised. Shifting personnel, inadequate consultation and direction, and failure to provide follow-up assistance on collections were the principal derelictions. The campaign was in shambles throughout the period of the drive and fell far short of its goal of $345,000. The drive grossed $88,842.32; the Council paid $24,000 to Havey Fund-Raising, Inc., and incurred $10,000 in additional expenses.
In its complaint, the Council sought to recover for many specific items of damages. The District Court submitted the damage issue to the jury only upon the theory of lost profits: “what the plaintiff would have made if the contract had been performed minus a deduction for savings made possible by the breach.”
Appellants contend that there was no liability under Iowa law since the receipts from the drive exceeded the expenses. This argument assumes, however, that the fact of the Council’s claimed lost profits was “too uncertain for recovery,” since an “expense” approach to damages is recognized as appropriate only when other measures of damages are inappropriate. See C. C. Hauff Hardware, Inc. v. Long Manufacturing Co., 260 Iowa 30, 148 N.W.2d 425, 428 (1967). Our first consideration must therefore be the propriety of an award based upon lost profits under the circumstances of this case.
Under Iowa law, when a contract has been breached, the innocent party is generally entitled to be placed
in the position he would have occupied had there been performance. DeWaay v. Muhr, 160 N.W.2d 454 (Iowa 1968); C. C. Hauff Hardware, Inc. v. Long Manufacturing Co., supra. Lost profits are recoverable under Iowa law, provided: (1) there is proof that some loss occurred, (2) that such loss flowed directly from the agreement breached and was foreseeable, and (3) there is proof of a rational basis from which the amount can be inferred or approximated. See Orkin Exterminating Co. v. Burnett, 160 N.W.2d 427 (Iowa 1968) (lost profits may be recovered if fact of loss is clear and uncertainty lies only in the amount, provided there is proof of a reasonable basis from which the amount can be inferred or approximated); DeWaay v. Muhr, supra (foreseeability is important element in lost profits cases; if uncertainty lies only in amount, recovery can be had); Benshoof v. Reese, 250 Iowa 868, 97 N.W.2d 297 (1959) (distinction between profits which are remote and those which are proximate is whether they are dependent on collateral engagements or are the immediate fruits of the principal contract); Wachtel v. National Alfalfa Journal Co., 190 Iowa 1293, 176 N.W. 801 (Iowa 1920) (value of a chance to win a specific prize already in existence not too remote or speculative as to preclude recovery of substantial damages for breach of contract); Creamery Package Manufacturing Co. v. Benton County Creamery Co., 120 Iowa 584, 95 N.W. 188 (1903) (lost profits allowed when fairly within the contemplation of the parties and loss was a direct consequence of the breach); Rule v. McGregor, 117 Iowa 419, 90 N.W. 811 (1902) (lost profits are too remote and speculative only when it cannot be ascertained with reasonable certainty that they have sprung from the breach alleged); McPeek v. Western Union Telegraph Co., 107 Iowa 356, 78 N.W. 63 (1899) (loss of, reward for capture of outlaw due to negligent failure of defendant to deliver message of outlaw’s whereabouts resulted in damages not too remote for recovery). In Shearon v. Boise Cascade Corp., 478 F.2d 1111, 1117 (8th Cir. 1973), this court noted that “Iowa law appears to permit a flexible approach to proof of the amount of ’damages sustained * * and approved an instruction on lost profits where an exclusive dealership agreement'had been breached.
A.
Fact of Loss. At trial, evidence was admitted which tended to show that the capital fund drive, as planned and programmed by ■ Havey Fund-Raising, with a goal of $345,000 was feasible. Indeed, Francis P. Havey himself so testified. Instead, due to the derelictions which constituted the breach, the Council grossed only $88,842.32 in a campaign which cost it at least $34,000. We think the District Judge had a sufficient basis from which to conclude as a matter of law that some damage resulted from the breach and thus properly submitted the question of lost profits to the jury for the purpose of computing damages.
B.
Proximate Cause. While Iowa law does recognize the “new business rule” under which potential profits from an untried enterprise are deemed too speculative to afford a basis for recovery, see City of Corning v. Iowa-Nebraska Light & Power Co., 225 Iowa 1380, 282 N.W. 791 (1938); Creamery Package Manufacturing Co. v. Benton County Creamery Co., supra, the campaign in this case differs materially from a general business enterprise. The campaign was a single venture, conducted apart from the general business operations of the Girl Scout Council. It had a specific goal to be achieved within a reasonably clear time frame. It was certainly foreseeable to defendants that a goal reasonably believed by the parties to be capable of achievement would be prejudiced by the failure of Havey Fund-Raising to provide the services contemplated by the agreement, and that such a diminished return would be the “immediate fruit” of the breach. See Benshoof v. Reese, supra, 97 N.W.2d at 301. Of special significance here is the case of Wachtel v. National Alfalfa Journal Co., supra. Therein the Iowa Supreme Court ruled that the value of a chance to win a specific prize already in existence was not so speculative, contingent or uncertain as to limit a plaintiff’s recovery to a minimal amount where defendant had deprived her of that chance by breaching its contract with her.
Collateral issues do not dominate here as they did in Benshoof v. Reese, supra, where diseased hogs sold by defendant prevented plaintiff from full utilization of his business and full utilization of his business might have resulted in more profits, and Love v. Ross, 89 Iowa 400, 56 N.W. 528 (1893), where a stallion’s poor breeding performance was to an important degree dependent upon the health and condition of the mares. No evidence was offered in the instant case to cast doubt upon the Council’s claim that the campaign failed solely because of Havey Fund-Raising’s breach of its agreement with the Council. While evidence of extraordinary conditions, such as a severe economic depression, might have been relevant to show that the claim was remote or speculative, none was offered in this case;
C.
Basis for Computation. Under Iowa law, the jury need not make the computation of damages with mathematical exactness. It is enough if there is proof of a rational basis for computation. Orkin Exterminating Co. v. Burnett, supra, 160 N.W.2d at 430; DeWaay v. Muhr, supra. Expert testimony was adduced at trial from which a h jury might determine how much less the Council netted than it would have received with full performance by Havey Fund-Raising.
Ed Breen, a long-time resident of the area in which the campaign was conducted, who served as the campaign’s general chairman, testified that he had previously worked on United Fund campaigns and chaired a Y.M.C.A. drive which netted $850,000 in the area and that the general feeling of the people involved with the campaign was that the goal would be achieved. He added that it was reasonable to expect considerable help from all the Girl Scout families in the area since Girl Scouting was not new to the area and since the camp had been in existence a long time. Breen also stated that there was a general public interest in the development of the camp.
James D. Harrison, a former campaign director and director of sales for Havey Fund-Raising, Inc., who had worked on the Lakota drive, was deposed before trial. In his deposition, which was read to the jury, he stated that in 1967 he had helped direct a Boy Scout campaign in Joliet, Illinois, which had raised over $426,000; that he had been co-director of a drive in Tacoma, Washington, which had raised its goal of about $1.5 million; and that he had directed a Boy Scout drive in Springfield, Illinois, and nine surrounding counties which had raised $18,000 more than its goal of $350,000. He added that he had indirectly participated in other drives. It was Harrison’s opinion that the outcome of the campaign would have been much different if it had been handled properly. His testimony was:
Q. Based upon your experience as a director and an associate director of campaigns, as well as sales director for Havey, and based upon your almost two months as acting director of Lakota Girl Scouts Council Campaign, do you have an opinion as to what amounts of money could have been raised if the director had properly conducted the campaign?
* * * * * *
A. My opinion is if we would have had a director on the scene as we so stated in the original contract, with an associate or co-director in residence at the assigned dates, that we probably would have had the success in Fort Dodge. I feel that way for two reasons. No. 1, the Council itself had conducted a lot of preliminary work in building or readying itself for the campaign as I mentioned earlier. The committee of businessmen that they had there and advisors to work with, the National Council, this type of thing. They had a slide presentation which was good. It was long, but it could have been adapted as I said earlier to our purpose in the campaign. It would have been a hard campaign, not an easy one, and of course I can’t —you know, again, this is my opinion, but I feel that with the proper work with the volunteers that were there in the area from the very beginning, and following that campaign time-table which we had set out originally in the contract, if that would have been followed, that there is an excellent chance that they would have achieved their goal, yes. [Evidentiary objection omitted.]
In contesting the computation of damages, appellants challenge the admission of this expert opinion testimony. The admission of an expert’s opinion on a particular subject and that expert’s qualifications are matters given to the sound discretion of the trial court. An appellate court will not overrule a ruling of one of these points absent an abuse of discretion. As stated by Wig-more:
[T]he only true criterion is: On this subject can a jury from this person receive appreciable help? In other words, the test is a relative one, depending on the particular subject and the particular witness with reference to that subject, and is not fixed or limited to any class of persons acting professionally ....
VII J. Wigmore, Evidence § 1923, at 21 (1940). See Fed.R.Evid. 702; E. Cleary, McCormick’s Handbook of the Law of Evidence § 13, at 30 n.67 (2d ed. 1972) (presumably, the judge would ’have a broad area of discretion under Rule 702); Steward v. Atlantic Refining Co., 240 F.2d 715, 718 (3d Cir. 1957); cf. Mears v. Olin, No. 74 — 1565 (8th Cir., February 28, 1975); Havenfield Corp. v. H & R Block, Inc., 509 F.2d 1262 (8th Cir. 1975); Hoppe v. Midwest Conveyor Co., 485 F.2d 1196 (8th Cir. 1973).
Where lost profits is an issue, we have expressly approved the use of expert testimony to establish the amount of the loss. In Frank Sullivan Co. v. Midwest Sheet Metal Workers, 335 F.2d 33 (8th Cir. 1964), we held that the testimony of a partner in a contracting firm concerning the firm’s future profits had been properly admitted by the district court as a basis for the computation of damages, where the partner was an experienced contractor. Likewise, in Fox Midwest Theatres, Inc. v. Means, 221 F.2d 173 (8th Cir. 1955), this court said that the testimony of a theatre owner as to the amount he would have earned but for the defendant’s antitrust violations was entitled to be considered as a factor in arriving at the amount of damages sustained. See also Autowest, Inc. v. Peugeot, Inc., 434 F.2d 556 (2d Cir. 1970) (testimony of plaintiff’s president and comptroller as to sales and profit projections for ten future years admissible to prove damages for wrongful termination of distribution franchise where guilty party agreed franchise would have continued that long). Of course, the weight to be given to such evidence is always for the jury to determine.
Finally, we note that expert opinion testimony has been deemed competent in at least one other case where a unique promotional venture did not lend itself to any other reasonable basis for computing damages. In Riley v. General Mills, Inc., 226 F.Supp. 780 (E.D.Pa. 1964), rev’d on other grounds, 346 F.2d 68 (3d Cir. 1965), insurance agents brought an action against General Mills, claiming that the abortive termination of a free gift promotional program had cost them profits which would otherwise have been earned. Damages for lost profits were assessed by the district court which held:
Therefore, considering the nature of the instant transaction which was a unique promotional venture we find that one reasonable source for computing the damages rests with the opinion testimony of expert witnesses. Where there is no other “reasonably safe basis” for measuring the substantial damages which the plaintiff has suffered by reason of the defendant’s breach of his contract, expert testimony may be utilized for the purpose. Western Show Company Inc. v. Mix, 315 Pa. 139, 141, 173 A. 183 (1934).
226 F.Supp. at 783. While reversing the district court (on the basis of insurance laws), the Third Circuit expressly approved the trial court’s approach to computation of damages. 346 F.2d at 72. We think this approach was warranted in the instant case. “[A] defendant whose wrongful conduct has rendered difficult the ascertainment of the precise damages suffered by the plaintiff, is not entitled to complain that they cannot be measured with the same exactness and precision as would otherwise be possible. * * * The wrongdoer should bear the risk of uncertainty that his own conduct has created.” Autowest, Inc. v. Peugeot, Inc., supra, 434 F.2d at 565, citing Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 379, 47 S.Ct. 400, 71 L.Ed. 684 (1929), and Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251 264-65, 66 S.Ct. 574, 90 L.Ed. 652 (1946).
As summarized by Professor Corbin:
It is not possible to state the precise degree of approach to certainty required by the recovery of profits as damages for breach of contract. If •the mind of the court is certain that profits would have been made if there had been no breach by the defendant, there will be a greater degree of liberality in allowing the jury to bring in a verdict for the plaintiff, even though the amount of profits prevented is scarcely subject to proof at all. In this respect, at least, doubts will generally be resolved in favor of the party who has certainly been injured and against the party committing the breach. The trial court has a large amount of discretion in determining whether to submit the question of profits to the jury; and when it is so submitted, the jury will also have a large amount of discretion in determining the amount of its verdict.
5 Corbin on Contracts § 1022 (1964).
D.
Instructions. Having concluded that there was sufficient evidence and that it was permissible under Iowa law to submit the issue of lost profits to the jury, we must finally consider whether the instructions allowed the jury to speculate or permit a recovery under an erroneous standard. The District Judge instructed that before damages for lost profits could be awarded the jury must first find (1) that the injury was foreseeable as a probable result of the breach when the contract was made, (2) that the evidence afforded a sufficient basis for estimating the amount with reasonable certainty, although exact proof was not required, and (3) that lost profits must not be speculative or conjectural. The District Judge thus accurately and completely set forth the requirements and limitations for an award of damages for lost profits under the law of Iowa, discussed supra.
We have dealt at length with the issue of damages because it is important to understand the narrow holding upon which this opinion rests. Not every promotional venture gone astray may be redeemed by resort to lost profits as a measure of damages. In this case we hold for the reasons stated that the District Court did not err in submitting the issue to the jury. Since the award was within the range of the evidence and the limiting instructions, the verdict and the judgment must stand.
. The Honorable William C. Hanson, Chief Judge, United States District Court for the Southern District of Iowa, sitting in the Northern District of Iowa.
. See note 5 infra.
. 28 U.S.C. § 1332. Havey Fund-Raising, Inc., is a Wisconsin corporation having its principal place of business in Milwaukee, Wisconsin; the Lakota Girl Scout Council, Inc., is an Iowa corporation having its principal place of busi- . ness in Fort Dodge, Iowa. The amount in controversy, $399,000, exceeds $10,000.
. The District Court’s decision to exercise its equitable powers to pierce the corporate veil and impose liability on Francis P. Havey as an individual fully comports with Iowa law and thé law enunciated by this court on the subject. See Inn Operations, Inc. v. River Hills Motor Inn Co., 261 Iowa 72, 152 N.W.2d 808 (1967) (corporation is treated as an entity separate from its stockholders only where applying the corporate fiction would not accomplish some fraudulent purpose, operate as a constructive fraud or defeat some strong equitable claim); Wescott & Winks Hatcheries v. F. M. Stamper Co., 249 Iowa 30, 85 N.W.2d 603 (1957) (corporate entity will be ignored only when circumstances justify it as when it is a mere sham or has been used as an instrument of fraud); Central Fibre Products Co. v. Lorenz, 246 Iowa 384, 66 N.W.2d 30 (1954) (corporate form properly disregarded where used as a thinly disguised cloak for shareholder’s individual operation); Wade & Wade v. Central Broadcasting Co., 227 Iowa 422, 288 N.W. 441 (1934) (trend of authority is to disregard corporate entity when it is so organized and controlled, and its affairs are so conducted, as to make it merely an instrumentality, agency, conduit or adjunct of another); Wooddale, Inc. v. Fidelity and Deposit Co., 378 F.2d 627 (8th Cir. 1967) (where a person is simply dealing with his own property through a corporate agency as he might deal with it as an individual, the fiction is sometimes disregarded), citing Haynes v. Kenosha St. Ry., 139 Wis. 227, 119 N.W. 568 (1909); Bankers Life and Casualty Co. v. Kirtley, 338 F.2d 1006 (8th Cir. 1964) (corporate entity will be disregarded only under exceptional circumstances such as where the corporation is a mere shell, serving no legitimate business purpose, and is being used principally as an intermediary to perpetrate fraud or promote injustice); Darling Stores Corp. v. Young Realty Co., 121 F.2d 112, 116 (8th Cir. 1941) (“courts will ignore the fiction of corporate legal entity when the circumstances justify it, and when it is used as a subterfuge to defeat public convenience, justify wrong or perpetrate a fraud”); Farmers Feed and Supply Co. v. United States, 267 F.Supp. 72, 76 (N.D.Iowa 1967) (Hanson; J.) (3-judge court) (“There is no evidence in this case which would justify piercing the corporate veil. * * * There is no substantial evidence to show the corporation to be a sham.”). See also Bangor Punta Operations, Inc. v. Bangor & Aroostook R.R., 417 U.S. 703, 94 S.Ct. 2578, 41 L.Ed.2d 418 (1974) (corporate form may be disregarded in interests of justice where it is used to defeat an overriding public policy). ___
. The Council sought a total of $399,000 from the defendants. Its prayer was broken down as follows:
(a) No Cookie Sale in 1969 .......... $' 11,000.
(b) Total payment to defendant ....... 24,000.
(c) Extra office expense ............ 10-,000.
(d) Deprived of 1969 operating funds . .. 8,000.
(e) Deprived of the use of the Lakota Girl Scout Camp ................. 50,000.
(f) Deprived of an effective Campaign Drive for ten years, and secured only $29,000 in cash of a total of $160,000 pledged, as reported in defendant's Final Report, rather than $325,000 to $350,000 .. 269,000,
TOTAL $399,000.
. The parties agree that Iowa law is controlling on the issue of damages.
. It was suggested during oral argument that the charge permitted the jury to award damages both for expenses incurred and for unrealized receipts. We disagree. The District Court correctly and clearly instructed the jury that “profits are the net pecuniary gain for a transaction, that is to say, the gross pecuniary gain reduced by the cost of obtaining it.” The eourt also instructed the jury that plaintiff could recover “in accordance with this instruction” the amount in excess of $88,842.32 which would have been “raised” but for the breach. The term “raised,” if calculated “in accordance with these instructions,” taken as a whole, could only have meant “net” to the Council.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_state
|
34
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
UNITED STATES of America, Appellee, v. Albert Earl FARMER, Appellant.
No. 8800.
United States Court of Appeals Fourth Circuit.
Argued June 11, 1963.
Decided June 13, 1963.
Joseph M. Wright, Shelby, N. C., for appellant.
William Medford, U. S. Atty. (James O. Israel, Jr., and Robert J. Robinson, Asst. U. S. Attys., on the brief), for appellee.
Before SOBELOFF, Chief Judge, and HAYNSWORTH and J. SPENCER BELL, Circuit Judges.
PER CURIAM.
Albert Earl Farmer appeals from his conviction under several counts of an indictment for using the United States mails in furtherance of a scheme to defraud. The scheme consisted of solicitations made by mail contemporaneously to several persons, offering to sell them a collection of old guns. After the persons addressed sent the defendant the sums requested no guns were shipped to any of them. It was shown that the defendant in fact owned no antique guns as represented.
The appeal is based chiefly on alleged errors of the trial court in admitting in evidence certain letters allegedly written by the defendant and his wife to the victims of the fraud. Overlooking the fact that at trial no objection was raised by the defendant as to some of these items, we still find no error. The letters now complained of were in response to letters written to the defendant by the victims and tend to explain the circumstances of the offenses charged. Moreover, even if some of the letters had been technically objectionable, no prejudice could have resulted from their admission, for they merely parallel statements of the defendant himself, made in other unobjectionable letters, acknowledging that he obtained substantial sums of money from the victims and failed to return the money or to ship the guns ostensibly sold to them.
The other contentions of .the appellant are so patently frivolous as to require no discussion.
The judgment is
Affirmed.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_usc2sect
|
77
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 15. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
BOGY v. UNITED STATES. SPAULDING v. SAME.
Nos. 7616, 7649.
Circuit Court of Appeals, Sixth Circuit.
May 9, 1938.
Charles M. Bryan and Thomas L. Robinson, both of Memphis, Tenn. (Chas. M. Bryan and Blan R. Maxwell, both of Memphis, Tenn., on the brief for Bogy; Thomas L. Robinson and John E. Robinson, both of Memphis, Tenn., on the brief for Spaulding), for appellants.
R. G. Draper, of Memphis, Tenn. (William McClanahan, C. P. J. Mooney, and R. G. Draper, all of Memphis, Tenn., on the brief), for appellee.
Before HICKS and ALLEN, Circuit Judges, and DRUFFEL, District Judge.
ALLEN, Circuit Judge.
The appellants were found guilty under six counts of an indictment, the first five counts of which charged them jointly with one Joseph R. DeLatte with violating the mail fraud statute, title 18, section 338, U. S.C. 18 U.S.C.A. § 338. The sixth count charged them with conspiracy to violate the mail fraud statute and section 77q, title 15, U.S.C. 15 U.S.C.A. § 77q. The District Court sentenced the appellants under each count.
The first count of the indictment, which by reference is incorporated into the other counts, in substance charges appellants, together with Joseph R. .DeLatte (who pleaded guilty), with devising a scheme, in violation of the above statutes, to defraud customers of the Colonial Investment Syndicate, Inc., of which Bogy is president and sole owner, of bonds which they had theretofore purchased from Bogy. It also charges appellants with using the mails for the purpose of fraudulently releasing Bogy from liability for. bonds purchased by his customers but not yet delivered to them by Bogy. The first two counts of the indictment are based upon letters mailed by Bogy to two of his customers, and the third, fourth and fifth counts are based upon letters mailed by three of Bogy’s customers to Bogy, all charged to have been mailed for the purpose of executing the fraudulent scheme. The sixth count describes the alleged conspiracy and lists among other overt acts the mailing and receiving of the five letters embodied in the other counts, and the unlawful use of the mails in the sale of securities.
It is impossible properly to summarize the allegations in this involved and detailed indictment. For the purposes of this opinion it is sufficient to say that the gist of the fraudulent scheme set forth was as follows:
Bogy, a resident of Memphis, Tennessee, had built up a business in selling and exchanging securities. In his manipulations he was often unable to make prompt deliveries, and therefore owed bonds to certain customers. Having secured the necessary information from Bogy, Spaulding would acquire from Bogy’s customers the bonds in their possession, would induce them to execute papers releasing Bogy from liability for the securities still owed (some of which papers were mailed), and would appropriate 'the bonds secured.
The appellants attack the sixth count of the indictment, both by demurrer and by assignment of error, upon the following grounds:
(1) That the facts set forth were insufficient to charge an offense.
(2) That section 77q, title 15, U.S.C., 15 U.S.C.A. § 77q, imposes punishment for fraudulent “sales” by use of the mails or instruments of interstate commerce, and that the indictment does not charge that a sale waá actually made by such meafis.
(3) That section 77q, title 15, U.S.C., 15 U.S.C.A. § 77q, is unconstitutional.
We think the District Court correctly overruled the demurrers. As to the sufficiency of the indictment, we note that no motion was filed to make the indictment more definite and certain. The true test of the sufficiency of the indictment is “whether it contains the elements of the offense intended to be charged, ‘and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.’ Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 S.Ct. 628, 39 L.Ed. 704; Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 480, 40 L.Ed. 606.” Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861. Applying this test, the sixth count sufficiently charges conspiracy under title 18, section 88, U.S.C., 18 U.S. C.A. § 88.
The second contention likewise is untenable. A “sale,” under title 15, section 77b (3), 15 U.S.C.A.. § 77b (3) includes “every contract of sale or disposition of, attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security, for value * * In the transactions described in the indictment, securities were disposed of, or their disposition was contracted for, and hence they are covered by the broad definition of the statute.
The attack upon the constitutionality of section 77q, title 15, U.S.C., 15 U. S.C.A. § 77q, must also fail. The section reads as follows:
“(a) It shall he unlawful for any person in the sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly—
“(1) to employ any device, scheme, or artifice to defraud, or
“(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
“(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser. * * * ”
The principal contention is that securities do not fall within the class of articles of interstate commerce .which Congress has power to regulate, and that the prohibition of the use of the mails in fraudulent sales of securities is therefore unauthorized. A similar contention was raised as to the validity of the mail fraud statute, title 18, section 338, U.S.C., 18 U.S.C.A. § 338, in Badders v. United States, 240 U.S. 391, 36 S.Ct. 367, 60 L.Ed. 706. The court held that Congress may forbid the use of the mails in furtherance of a scheme that it regards as contrary to public policy, whether it can forbid the scheme or not. Cf. Public Clearing House v. Coyne, 194 U.S. 497, 24 S.Ct. 789, 48 L.Ed. 1092; In re Rapier, 143 U.S. 110, 12 S.Ct. 374, 36 L.Ed. 93; Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877.
We think these holdings by analogy support the validity of section 77q, title 15, U.S.C., 15 U.S.C.A. § 77q, Congress, under its power to establish post offices and post roads, Article 1, § 8, United States Constitution, has full control of the mails and may forbid their use in the execution of schemes to defraud. Under this section Congress has a similar power over the instrumentalities of interstate commerce. This power is complete in itself, and subject to no limitations except those found in the Constitution. Hipolite Egg Co. v. United States, 220 U.S. 45, 57, 31 S.Ct. 364, 55 L.Ed. 364. Section 77q is no more far-reaching than other statutes lawfully enacted to close the channels of interstate commerce to uses antagonistic to the public health and safety, such as the transportation of impure food (Hipolite Egg Co. v. United States, supra), the white slave traffic (Hoke v. United States, 227 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523, 43 L.R.A.,N.S., 906, Ann.Cas.1913E, 905), and traffic in stolen automobiles (Brooks v. United States, 267 U.S. 432, 45 S.Ct. 345, 69 L.Ed. 699, 37 A.L.R. 1407). Congressional control of the mails logically includes the power to exclude therefrom not only articles physically dangerous to the public health, safety or welfare, such as narcotics, but. also to forbid the use of the mails for deceptive transactions which are detrimental to the financial well-being of the nation. As said in Brooks v. United States, supra (page 346), “Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other states from the state of origin.” The particular statute here considered was held valid in Securities and Exchange Commission v. Torr, 15 F.Supp. 315, D.C.N.Y.; Jones v. Securities and Exchange Commission, 2 Cir., 79 F.2d 617. Title 15, section 77q, U.S.C., 15 U.S.C.A. § 77q, is a valid exercise of the congressional power over the mails and interstate commerce.
Appellants also contend that the court should have directed a verdict for appellants, that the charge was prejudicially erroneous, and that misconduct of Government counsel prevented a fair trial.
Decision as to the court’s denial of a directed verdict requires some statement of the evidence.
Bogy admitted buying the powers of attorney and sending the letters described above, but claimed that he had no connection with Spaulding. Spaulding admitted negotiating the deals, but said that the frauds were the conception of and were executed by Joseph R. DeLatte, co-defendant.
In the conduct of his business Bogy had acquired the confidence of the customers named in the indictment, Enochs, Miss Johnson, and Mrs. Kelly. He traded their securities and for that purpose retained them in his possession from time to time. Bogy had contracted to sell and during the early part of 1935 owed to Enochs, Mrs. Kelly and Miss Johnson some forty-seven bonds of the par value of $1,000 each, which were worth about twenty cents on the dollar, or about $9,000 in the aggregate, at the then market price. The fact that these bonds were selling so far below par had not been revealed to Mrs. Kelly or Miss Johnson by Bogy.
In December, 1934, Bogy was pressed for funds. The bank account of his company ran as low as $24 in this month, and at no time during this period was adequate to pay for all of the bonds which Bogy owed. He kept no private bank account, having been through bankruptcy in 1930. Bogy considered that he had the right’to sell certain bonds left in his possession “and put the money in the business,” and it is plain that he had been operating to some extent oh the proceeds of his customers’ securities which had been left in his hands.
In each of the individual deals the same methods were employed. Spaulding- called upon the customer, using a false name, either Deering or Moody, presented fictitious addresses and forged references, and induced the customer to “trade” the bonds he had and also to give to Spaulding a power of attorney or an assignment of the bonds due the customer from Bogy. In each case Spaulding dictated a letter which the customer signed and Spaulding mailed to Bogy, instructing Bogy to -deliver to Spaulding the bonds still owed the customer. The three letters of this description , form the basis of the third, fourth and fifth ctiunts of the indictment.
Spaulding then sent the assignment or power of attorney to Bogy by messenger, either R. A. DeLatte, Joseph R. DeLatte’s brother, or S. P.'Cummings, who also used fictitious names. Bogy delivered no bonds, but paid cash and received the power of attorney and assignment. Spaulding delivered none of the bonds contracted to be exchanged for those handed over by the customers.
The powers of attorney called for the delivery of securities valued roughly at about three times as much as the amounts Bogy paid. When the transactions were completed Bogy was released of all liability for the bonds owing to his customers, .and Spaulding profited-to the extent of Bogy’s payment and whatever he retained from the sale of the converted securities acquired directly from the customers. In the same general way Spaulding acquired a substantial number of securities from other customers of Bogy and appropriated them.
In response to inquiries from Mrs. Kelly as to the reliability of Moody (one of the names assumed by Spaulding), ■ Bogy answered that he knew nothing about him, although the address given was only one block distant from Bogy’s office, and he could easily have made a personal investigation.
Letters were written by Bogy to Miss Johnson and Mrs. Kelly, telling of his delivery of the bonds to Spaulding. These statements in the letters were false, as no such bonds were then in' Bogy’s possession.
The facts which afford ample support for the jury’s verdict are as follows:
As to Spaulding: This appellant twice made extensive written confessions admitting his guilt. He repudiated these confessions when he testified at the trial, denied that he knew of the fraud until toward the close of the transactions, and claimed that Joseph R. DeLatte had induced him to enter the deal, had made all plans, and had received all profits except small commissions paid to himself.
Spaulding is clearly contradicted not only by his two confessions, but also by his admitted conduct during this period. He used five assumed names. He caused Enochs to sign papers, including the letter to Bogy, and dictated similar letters and papers for Miss Johnson and Mrs. Kelly to sign. All of the letters he mailed to Bogy. Spaulding’s claim that he was simply a messenger for Joseph R. DeLatte is contradicted by Dych, who sold the bonds Spaulding appropriated. Dych, who had no knowledge of or connection with the fraud, states that on his arrival in Chattanooga with Joseph DeLatte, Spaulding had in his possession the bag of securities. Later Spaulding told Dych “I have just made $1,000.00.” This statement was made after the Kelly deal, in which $1,000 was the amount paid by Bogy to Spaulding’s agent.
The truth of Spaulding’s confessions was strongly corroborated, and his motion for directed verdict was rightly denied.
As to Bogy: Each customer defrauded was a client of Bogy. While Spaulding denies that Bogy received any profit, Bogy owed bonds to these three customers, and was released from liability thereunder by these transactions. In each case the deal was not closed until Bogy was released. The letters mailed to Bogy authorizing Bogy to deliver the bonds to Spaulding were unnecessary from Spaulding’s standpoint, since he had the power of attorney, but they were clearly calculated completely to disassociate Bogy from the conspiracy.
Other customers of Bogy were defrauded of numerous valuable bonds by Spaulding. Also Bogy sent word to Spaulding by R. A. DeLatte that Bogy wanted to send Spaulding “Some more — some names.” A list of Bogy’s customers was sent to Spaulding from Bogy’s office. Bogy denies this, but R. A. DeLatte is corroborated in this by Spaulding and Joseph DeLatte. The list is in evidence, and reads as follows :
“J. W. Blair Huntingdon
26M 8M due
D. S. Parker Jackson
2M Metropolitans
12M other kinds
Mrs. G. E. Mayfield Medina
2M Mets and quantity others
H. W. Key Spring Creek, Tenn.
4M 2M due”
The list, written on Bogy’s typewriter, so far as it went was correct. Blair and Key, for example, had bought from Bogy and had in their possession the number of bonds stated and the number given as owing from Bogy was then owing to Blair and Key respectively. The list when originally delivered had contained other names, and as each customer was approached and the transaction was made, that customer’s name was torn from the series. The fact that the list contained data as to bonds owed by Bogy and not yet delivered demonstrates that the information came through Bogy, as the number of bonds undelivered could only have been figured in Bogy’s office.
When Mrs. Kelly sought Bogy’s advice as to the trade offered her by Spaulding, Bogy told her that the bonds offered by Spaulding were all good bonds, although he claimed not to know who Spaulding was, and doubted whether such a trade could be made. Mrs. Kelly says that Bogy said “If I could make such a trade as that I would make it without any hesitation whatsoever.”
Bogy paid Spaulding $1,000 in the Enochs deal, $1,000 in the Kelly deal, and $750 in the Johnson deal; that is, he paid $2,750 for powers of attorney to release himself from liability for more than $9,000 worth of bonds at the then market price. Considered as settlement for the bonds or as a purchase of the powers of attorney, the price paid by Bogy was not commensurate with the value received. It was far more consistent with the existence of an agreement on his part to share the profits with Spaulding.
Bogy’s statement as to the Enochs bonds is that he delivered seven of them to R. A. DeLatte for Spaulding, and bought seven himself, giving $1,000 and 400 shares of Television stock in payment. He is corroborated by no witness and by no record of any Television stock transaction. 'R. A. DeLatte says Bogy gave him $1,000 at this time, and denies receiving anything else. A company check for $1,000 executed by Bogy on this day, endorsed by R. A. DeLatte under his assumed name, is in evidence.
As to the Kelly bonds, Bogy states that he put $3,700 cash into an envelope and gave it to Cummings - (whom he had never seen before). He drew a company check for $1,000 on ’this day. This is the transaction in which Spaulding told Dych that he had just made $1,000. Bogy explains the $1,000 check as being a payment to a Mr. Johnson, -who was not produced as a witness.
For the Johnson bonds, Bogy states that he paid $2,100 cash, but R. A. DeLatte says he received $750. A company check for $750 was drawn by Bogy on this day, and is explained by Bogy as having been paid to another purchaser who was not called to testify..
The admitted falsity of the letters written by Bogy to Mrs. Kelly and Miss Johnson, saying that he had delivered their bonds, does not serve to strengthen his uncorroborated assertions. Also the conduct of Bogy’s business during this period was unsystematic, and he was unable to substantiate many of his material statements as to these transactions by orderly books or records. In fact Bogy said that only a pencil memorandum was kept of the bonds involved in the Enochs, Kelly and Johnson transactions, and that that “would not be absolutely accurate.”
Bearing in mind the rule that on motion for directed verdict the evidence must be considered in the light most favorable to the party against whom it is urged (Nieman v. Aetna Life Ins. Co., 6 Cir., 83 F.2d 753), and that if .substantial evidence be introduced sufficient to take the case to the jury no amount of contradictory evidence will authorize the trial court to direct a verdict (Great Atlantic & Pacific Tea Co. v. Chapman, 6 Cir., 72 F.2d 112), we conclude that the District Court correctly overruled the motion for directed verdict on behalf of Bogy.
The principal assignment of error to the charge arises out of the fact that the letters forming the basis of the first five counts were sent after the bonds in the possession of each customer and the power of attorney had been delivered to Spaqlding. Appellants contend that each individual fraud was then complete, and that the sending of these letters had no connection with the scheme alleged in the indictment, and that the court should therefore have charged the jury that appellants were not guilty of using the mails to defraud or of conspiracy as charged. But the record clearly discloses that part of the fraudulent scheme was that Bogy should be released from liability for the bonds owed to these customers. This is-the explanation for the letters which Spaulding caused Enochs, Mrs. Kelly and Miss Johnson to mail to Bogy, authorizing the delivery of the bonds. The powers of attorney given to Spaulding were sufficient for Spaulding’s purpose, but not for Bogy’s purpose, which was not only to profit by, but also to be exonerated from, any part in the scheme. Each individual transaction was completed only when Bogy received the letter and took up the power of attorney or assignment. Hence each letter sent by the customer was mailed in furtherance of a plan not yet consummated. The letters from Bogy were calculated to aid in the retention of the fruits of the fraud, to lull the victims into a false sense of security, to postpone their taking action with respect to their loss, and to delay discovery. Cf. Preeman v. United States, 7 Cir., 244 F. 1. The fact that letters were sent by Bogy after he took up each power of- attorney does not -exonerate him, because the mails were used for the purpose of assuring the victim that he had not been defrauded, and attempting to lull him into inaction. Preeman v. United States, supra; Lewis v. United States, 9 Cir., 38 F.2d 406; Newingham v. United States, 3 Cir., 4 F.2d 490, 491. The enterprise was in the course of execution, both before and after the mails were used, and the letters tended to contribute to subsequent frauds which were incidents in the general scheme. Preeman v. United States, supra. The numerous requests to charge which fall within this group were rightly refused.
Other assignments to the charge may be dealt with summarily. It is not necessary that the scheme to defraud was intended to be executed by the use of the mails nor that any of the defendants at the time that they entered the common scheme so intended. If in the execution of the scheme the mails are in fact used, the statute is violated. Preeman v. United States, supra. The mere incidental and unpremeditated use of the mails in an attempt to defraud may give the federal courts jurisdiction. Hendrey v. United States, 6 Cir., 233 F. 5; Silkworth v. United States, 2 Cir., 10 F.2d 711; United States v. Young, 232 U.S. 155, 161, 34 S.Ct. 303, 58 L.Ed. 548.
The contention that Bogy, if he entered the scheme, entered it after the mailing of the letters from the customers, and that the District Court therefore should have charged that Bogy was not guilty, has no merit. Tt need hardly be repeated that all who with criminal intent join themselves even slightly to the principal scheme, are subject to the statute, although they were not parties to the-scheme at its inception (Kaplan v. United States, 2 Cir., 18 F.2d 939), the acts of one in furtherance of a common criminal enterprise being in law the acts of all. Sasser v. United States, 5 Cir., 29 F.2d 76; Belt v. United States, 5 Cir., 73 F.2d 888.
No reversible error appears in the charge, and we next consider the alleged misconduct of counsel. Appellant Bogy claims that counsel for the Government attempted to create class prejudice by holding Bogy up as a representative of city clubmen before a rural jury, and to foster sympathy by emphasizing the age of the persons victimized and the extent and nature of their loss. These contentions have no weight. Bogy himself testified as to his high social position, and many questions asked by the Government on this point were called forth by Bogy’s testimony. Enochs was 82, Miss Johnson was 75, and Mrs. Kelly was of middle age. Evidence as to their age and condition was relevant. While counsel for the Government was at times over-zealous in his emphasis, he was in every such instance rebuked at the time by the trial judge. The test laid down by this court is that the inquiry as to misconduct of counsel “must always be as to Whether in view of the whole record the impression conveyed to the minds of the jurors by irrelevant and prejudicial matter is such that the court may fairly say that it has not been successfully eradicated by the rulings of the trial judge, his admonition to counsel, and his instruction to the jurors to disregard it.” Pierce v. United States, 6 Cir., 86 F.2d 949, 952; Volkmor v. United States, 6 Cir., 13 F.2d 594.
Applying this rule, we find that the rights of the appellants were protected and the trial was fair.
Appellants also attack the severity of the sentences imposed. The sentences are within the statutory limit, and hence we do not review the discretion vested in and exercised by the trial court in imposing them. Beckett v. United States, 6 Cir., 84 F.2d 731, 733.
The judgments are affirmed.
This ease was reversed on other grounds, 298 U.S. 1, 56 S.Ct. 654, 80 L.Ed. 1015.
Enochs had died before the trial, and while the fraudulent appropriation of his bonds was shown, the surrounding circumstances could not be fully developed.
A sample of this letter is the following:
“Dear Mr. Bogy:
“Will y.ou please deliver to Mr. Walter A. Moody the eighteen Consolidated Gas and Electric Bonds (6% Gold Notes) you owe me. I have sold same to Mr. Moody, and received compensation therefor and this is your authority to deliver them to him.
“Yours very sincerely,
“[Signed.] Mrs. R. Ellis Kelly.”
The letter to Miss Johnson follows:
“Dear Miss Johnson:
“In accordance with your letter of March 26th, we made delivery yesterday to Walter A. Moody of the ten Consolidated Electric and Gas Company Bonds which we were holding for your account and received from him the Power of Attorney signed by you, and also his receipt for the Bonds.
“This, as stated before, completes all contracts with you, with the exception of one, only, Rocky Mountain Fuel Company Bond in the principal sum of $500.00, which will go forward to you within the next day or so.
“We trust that you have made a satisfactory and profitable trade for your Consolidated Bonds, and if we can serve you at any time, do not hesitate to let us know.
“With best wishes, we are,
“Yours very truly,
“Colonial Investment Syndicate, Inc.,
“[Signed] B. A. Bogy,
“By B. A. Bogy, President.”
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 15? Answer with a number.
Answer:
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songer_treat
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B
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the 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.
Richard WALLACH, Appellant, v. CITY OF PAGEDALE et al., Appellees.
No. 18580.
United States Court of Appeals Eighth Circuit.
May 9, 1967.
See also 264 F.Supp. 271.
Richard Wallach, Wellston, Mo., made argument pro se and filed brief pro se.
Paul J. Boll, St. Louis, Mo., for ap-pellee and filed typewritten brief.
Before VAN OOSTERHOUT, MAT-THES and LAY, Circuit Judges.
VAN OOSTERHOUT, Circuit Judge.
The trial court dismissed this action commenced by plaintiff Wallach which asserted jurisdiction in the federal court under 28 U.S.C.A. § 1331 (federal question) and 28 U.S.C.A. § 1343 (violation of civil rights.) Diversity jurisdiction is not asserted and does not exist. The basic grievances asserted here are the same as those urged in Wallach v. City of Pagedale, 8 Cir., 359 F.2d 57, and are asserted damages flowing from alleged violation by defendants of plaintiff’s constitutional rights.
Defendants moved for dismissal of the action on the following grounds:
“(a) That the claim asserted against the defendants is not a claim upon which relief can be granted; and
“(b) That this Court has no jurisdiction over the subject matter of the claim presented between the plaintiffs and the defendants.
“(c) That the petition of plaintiff fails to comply with Rule 8, Federal Rules of Civil Procedure in that the averments therein are not simple, concise or direct, in respect to jurisdiction, facts or relief and is so vague, ambiguous, rambling and full of irrelevant averments that these defendants cannot be reasonably required to frame a responsive pleading thereto.”
The motion to dismiss was sustained. The case was dismissed without prejudice for want of jurisdiction. Plaintiff has appealed from such dismissal.
The trial court cited our former opinion in Wallach v. City of Pagedale, supra. We there stated:
“There is no doubt that the complaint does not comply with Rule 8 (a) as it does not contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ The complaint is confusing, ambiguous, redundant, vague, and, in some respects, unintelligible. It is also highly argumentative.” 359 F.2d 57, 58.
We went on to state that the pleadings, even if given a liberal interpretation, do not state a cause of action against the defendants within the jurisdiction of the federal court, setting forth the basis for such conclusion and supporting authorities. The complaint now before us is much more extensive than the former complaint but in our view it is in greater violation of Rule 8 than the complaint previously considered.
Plaintiff in his present voluminous, repetitious, confusing and argumentative complaint asserts that he acquired real estate in an unincorporated area in St. Louis County which was zoned as heavy industrial property upon which he was permitted to and did establish a junk yard and automobile wrecking yard in conformity with the St. Louis County zoning ordinance adopted in 1946. It is then asserted that plaintiff’s property was maliciously and illegally annexed to the city of Pagedale but no substantial legal grounds are asserted to support the claim of invalid annexation. Plaintiff next asserts in a highly inflammatory manner that numerous zoning and licensing ordinances were passed by the city of Pagedale both before and after the annexation in violation of numerous rights guaranteed plaintiff by the Constitution. Some of such ordinances are cited by number and excerpts of part of the ordinances are set out.
As shown by the complaint, Ordinance No. 88 passed by the city before the annexation provides for the zoning of the city but specifically carries a provision reading:
“The lawful use of land, buildings and structures existing at the time of the adoption of this ordinance may be continued, although such use does not conform to the provisions thereof, but if such non-conforming use is discontinued, any use in the future of such premises shall be in conformity with the provisions of this ordinance.”
It would appear from the complaint that Ordinance No. 88 was amended in 1954 to zone the annexed property, including plaintiff’s property, with the provisions of Ordinance No. 88 made applicable to the annexed property.
Thus, on their face the ordinances pleaded with respect to zoning appear to protect the rights of nonconforming users and the basis of the asserted invalidity of such ordinances does not reasonably appear in the complaint.
It would seem from the complaint and statements in oral argument that there is a question whether the prior junk yard operation was the plaintiff’s own or by a corporation in which he was interested and there is also some intimation that the prior use of the property may have been abandoned.
Plaintiff’s principal claims of wrongs committed by the defendants appear to be: (1) His arrest and conviction in the Pagedale police court for operating a junk yard without a license; (2) the city’s refusal to permit plaintiff to use his premises for its highest and best use —a junk yard — thereby depriving plaintiff of income needed to pay mortgage indebtedness and the refusal of the city to grant a license to a prospective purchaser which resulted in plaintiff’s inability to make an advantageous sale of such property, and his loss of the property through mortgage foreclosure for a sum considerably under its fair value. Plaintiff prays for declaratory judgment and for such further relief as may be just.
It would appear that the claimed grievances arise primarily out of the licensing requirements of the city ordinances.
With respect to the propriety of federal courts interfering with state criminal prosecutions, the rule is stated in Douglas v. City of Jeannette, 319 U.S. 157, 163-164, 63 S.Ct. 877, 881, 87 L.Ed. 1324, as follows:
“Congress, by its legislation, has adopted the policy, with certain well defined statutory exceptions, of leaving generally to the state courts the trial of criminal cases arising under state laws, subject to review by this Court of any federal questions involved. * * *
“It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions. No person is immune from prosecution in good faith for his alleged criminal acts. Its imminence, even though alleged to be in violation of constitutional guarantees, is not a ground for equity relief since the lawfulness or constitutionality of the statute or ordinance on which the prosecution is based may be determined as readily in the criminal case as in a suit for an injunction. Davis & Farnum Mfg. Co. v. [City of] Los Angeles, 189 U.S. 207 [23 S.Ct. 498, 47 L.Ed. 778]; Fenner v. Boykin, 271 U.S. 240 [46 S.Ct. 492, 70 L.Ed. 927]. Where the threatened prosecution is by state officers for alleged violations of a state law, the state courts are the final arbiters of its meaning and application, subject only to review by this Court on federal grounds appropriately asserted. Hence the arrest by the federal courts of the processes of the criminal law within the states, and the determination of questions of criminal liability under state law by a federal court of equity, are to be supported only on a showing of danger of irreparable injury ‘both great and immediate.’ ”
See Outdoor American Corp. v. City of Philadelphia, 3 Cir., 333 F.2d 963, 965.
No extraordinary circumstances are alleged in our present case which would warrant a departure from the rule just stated. On oral argument, it developed that plaintiff appealed from his conviction and that such appeal is still pending.
We cannot ascertain from the complaint the precise basis or the legal grounds upon which plaintiff claims that a license was denied to him to operate his junk yard in violation of his constitutional rights. Plaintiff quotes part of Ordinance No. 23 relating to licensing of junk dealers and license fees and then asserts that his business does not fall within any of the categories listed in the ordinance. Later plaintiff refers to Ordinance No. 227 relating to regulating, licensing and license fees for automobile lots, and No. 228 with respect to licensing and license fees for salvage yards, both enacted in 1959. Neither of such ordinances are set out in whole or pertinent part. No ascertainable attack is made on the validity of such ordinances but rather the claim is made that the plaintiff’s business does not fit the classifications covered by the ordinances. It would appear that the questions raised primarily relate to the interpretation of the ordinances and that such questions are questions of state law.
Plaintiff does not state what attempt, if any, he made to comply with the licensing ordinances nor make any clear-cut allegation that he made any proper application for a license, and if so, that any basis exists for a determination that the city abused its discretion in withholding a license.
In Mosher v. Beirne, 8 Cir., 357 F.2d 638, 640-641, we sustained the dismissal of plaintiff’s action based on 28 U.S.C.A. § 1343, wherein plaintiff claimed a city improperly refused him a license to operate a public dance. We stated:
“The rights and necessity for restrictions in municipal zoning ordinances have long been sustained. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 [54 A.L.R. 1016] (1926). It has also been recognized that the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation within the police power of the state is not violative of rights secured by the Fourteenth Amendment, People of State of New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, 26- S.Ct. 144, 50 L.Ed. 305 (1905); and that ordinances validly prohibiting the operation of certain businesses without first obtaining municipal permission do not deprive one of his property without due process of law nor deny one the equal protection of the law, Fischer v. City of St. Louis, 194 U.S. 361, 24 S.Ct. 673, 48 L.Ed. 1018 (1904).”
In Garfinkle v. Superior Court of New Jersey, 3 Cir., 278 F.2d 674, the court in affirming the dismissal of an action based on violation of federal constitutional rights concluded, “His stated fundamental facts, irrespective of their fantastic nature, certainly do not show clearly and distinctly that this suit is based on a federal question.” What was said there is fully applicable here.
Federal courts have only that jurisdiction which Congress, acting within the limits of the Constitution, confers upon them.
“The party invoking the district court’s original jurisdiction has the duty of affirmatively alleging jurisdiction; and, if his allegations are properly controverted, the burden of establishing jurisdiction. Lack of federal jurisdiction may be raised by motion or in the responsive pleading. And ‘whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.’ ” 1 Moore’s Federal Practice 2d Ed., ¶0.60 [4],
See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135. Federal Rules of Civil Procedure No. 8(a) (1).
Defendants have by motion attacked the jurisdiction of the federal court to hear this case. Plaintiff has not by his pleadings or in any other manner met the burden resting upon him to establish federal jurisdiction.
The judgment dismissing the petition without prejudice for the lack of jurisdiction is affirmed.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
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songer_r_natpr
|
0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATIONAL LABOR RELATIONS BOARD et al., Petitioners, v. DAVID BUTTRICK COMPANY, Respondent.
No. 6636.
United States Court of Appeals First Circuit.
Heard April 5 and 6, 1966.
Decided May 26, 1966.
Warren M. Davison, Washington, D. C. , with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Nancy M. Sherman and Linda R. Sher, Washington, D. C., were on brief, for petitioner.
Mark G. Kaplan, Boston, Mass., with whom Samuel E. Angoff and Angoff, Goldman, Manning & Pyle, Boston, Mass., were on brief, for Milk Wagon Drivers and Creamery Workers Union, Local No. 380, intervening petitioner.
John J. Delaney, Jr., Boston, Mass., with whom Murray S. Freeman, Gordon P. Ramsey, Duane R. Batista and Nutter, McClennen & Fish, Boston, Mass., were on brief, for respondent.
Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges.
OPINION OF THE COURT.
COFFIN, Circuit Judge.
This petition of the National Relations Board seeks enforcement of a Board order that respondent company shall henceforth engage in collective bargaining in good faith with the exclusive representative of its employees, Milk Wagon Drivers and Creamery Workers Union, Local No. 380, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware-housemen and Helpers of America. Respondent’s position in this unfair labor practice proceeding and in an earlier representation proceeding has been that Local 380 is subject to a disqualifying conflict of interest by reason of its alleged subservience to International and the existence of a substantial loan by a pension fund, serving International’s members in another geographical area, to Whiting Milk Company, one of respondent’s competitors.
The conflict is asserted to lie in pressures that could be brought to bear on Local 380, through efforts of the Fund and International to protect the loan, to take action adverse to or refrain from taking action favorable to respondent and its employees. The Board and its subordinate officers have consistently ruled that there has been insufficient showing of such a connection between Local 380 and the Fund or such participation by the Local in the loan negotiations as to disqualify it from serving as the bargaining agent for respondent’s employees.
Factual Background
Respondent is a dairy products processor and distributor, with its principal place of business in Arlington, Massachusetts. Until September 1964, respondent had approximately thirty drivers servicing twenty-three retail milk delivery routes in some eighteen communities in the Greater Boston area. Eight routes were in Arlington where it was a major distributor. Competition in the entire area served involved several other companies and several hundred milk route drivers.
Local 380 has since 1910 represented milk company employees in the Boston area, and has about 1500 members who are employed by five or six milk companies and several other enterprises. Of these, 600 are employed by Whiting, which serves a much wider area than Greater Boston, and includes neighboring states. Local 380 .is an affiliate of International, and subject to its constitution. Since 1961 it has had its own by-laws, which deal with membership requirements, dues, meeting rules, duties and election of officers and barn stewards, and methods of approving compensation of officers, expenditures, and collective bargaining agreements.
After corporate reorganization in a federal district court, Whiting came under new management, in or around 1960. Financing was secured through short term bank loans. In 1962, Whiting was exploring sources of longer term financing. The chairman of the board of Whiting became interested in discussing the possibilities of a loan from the Fund and approached a business agent of Local 380 for an introduction to the General President of International. A meeting took place betweeen the two men in July 1962 and a meeting of the Fund’s trustees and Whiting’s chairman occurred in September 1962, followed by another meeting of the two men in the early spring of 1963. Local 380 played no part in any negotiations. Finally, in the spring of 1963, a loan in the total amount of $4 million was forthcoming, being secured by mortgages of real and personal property, including good will, a pledge of all stock, open end resignations of principal officers and directors, and the right to operate the debtor’s business in case of default of any obligation “without restrictions or limitations of any kind”. A year later, in July 1964, application was made for an additional loan of $700,000, for expansion into the distribution of refrigerated foods. This was granted in January 1965.
In September 1964, 29 of respondent’s retail driver employees went on strike, which strike is still continuing, no replacements having been hired. On October 7, 1964, the Board’s Regional Director ordered an election, which was held on October 29,1964, resulting in the ultimate certification of Local 380 as the collective bargaining agent for respondent’s employees.
A formal request to bargain was declined by respondent because of Local 380’s alleged disqualification, and the unfair labor practice proceeding followed. In this second procedural stage, respondent proffered the following additional evidence; (1) the actual granting of the additional $700,000 loan; (2) acquiescence by Local 380 in Whiting’s initiating discussions with employees about a possible reduction of the work week and elimination of some jobs, and some changes by Whiting in this direction without union protest; and (3) Whiting’s decision in 1965, for the first time, to engage in individual bargaining rather than to continue its participation in multi-employer bargaining. The Trial Examiner concluded that respondent’s affirmative defense, Local 380’s disqualification, had not been sufficiently established to rebut the prima facie case of refusal to bargain. The Board affirmed and subsequently denied respondent’s motion to reopen the record to receive allegedly new evidence of control by International’s General President over both the Fund and bargaining activities of local unions.
The Board’s Conclusions
Because we disagree with the approach taken by the Regional Director, Trial Examiner, and the Board, it is essential that the basis of their conclusions be understood. The first decision — in the representation proceeding — was made for the Board by its Regional Director. The issue occasioning this opinion was disposed of in a footnote, as follows:
“2. The Employer contended that, although the' Petitioner herein is a labor organization within the meaning of the Act, it is disqualified from participating in the instant proceeding, in view of the fact that Central States, Southeast and Southwest Areas’ Pension Fund, a joint labor-management administered fund, had recently loaned certain sums of money to a competitor of the Employer herein. The record in the instant case indicates that Petitioner is not affiliated with said Fund nor did it participate in the negotiations concerning said loan. Accordingly, it is determined that the Petitioner is a labor organization that may participate in the instant proceeding before this Board. Auburn Rubber Company, Inc., 140 N.L.R.B. 919, fn. 3.”
We do not take issue with the findings of non-affiliation and non-participation in loan negotiations, nor with the citation to Auburn Rubber Company, Inc., supra, which contains a similar footnote conclusion that another Teamsters local was not “affiliated” with the Funds. Our difficulty is that we do not think the issue of disqualification on the asserted ground of conflicts of interest can be so easily disposed of. The footnoted findings are correct answers to the wrong questions.
Similarly, when the Board affirmed the Trial Examiner’s findings and conclusions in the unfair labor practice hearing, it took substantially the same position on the conflicts of interest issue. The Trial Examiner considered that the basic arguments had already been rejected by the Board as not being supported by the evidence then before it. He concluded that the proffered new evidence of the additional loan, the talk and acts of Whiting relating to eliminating some jobs and shifting to unilateral bargaining did not add enough to overcome the General Counsel’s prima facie case. The Board, in affirming, said in a footnote:
“ * * * like the Trial Examiner, we find that the entire record, as supplemented by these additional facts, contains insufficient evidence of any definite or substantial connection between the Union and the loans by the Fund to Whiting which allegedly give rise to such a conflict of interest as would disqualify the Union from representing Respondent’s employees.”
Again, we accept the factual statement that there was insufficient evidence of a “definite or substantial connection” between the union and the loans to Whiting, if by this is meant either formal affiliation between Local 380 and the Fund or involvement by the local in the loan negotiations. But, again, this does not dispose of the issue, for it is the interrelationship of powers and temptations created by the Fund’s loans to a competitor of respondent which gives rise to the problem, without regard to the circumstances leading to the existence of the loans. The principles attaching to the concept of conflicts of interest in the fiduciary field generally, and also in the field of collective bargaining, look to the prevention and forestalling of conditions which are likely to divide loyalties. Were proof of union “betrayal” required to trigger the application of sanctions, this constructive operation of the law would be largely nullified. We therefore take issue, not with the interpretation of the testimony, nor, of course, with the facts as revealed by the documentary evidence, but rather with the test or standard applied and the application of the undisputed facts to such standard.
While we have often considered ourselves restrained by the teaching of Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, we consider that a fair and sensitive resolution of the basic issue in this case involves the kind of “judgment as to the proper balance to be struck between conflicting interests” where we would not be expected or required to feel bound by administrative conclusions. N. L. R. B. v. Brown et al., 1965, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839.
Precedents and Principles
While the Board may have been correct in saying of the specific circumstances in Bausch & Lomb Optical Company, 1954, 108 N.L.R.B. 1555, 1562, that the case was “unique”, we suspect that as union pension funds continue to grow, particularly with multi-employer contributors, the question of possible conflict between investment protection and worker representation motives is likely to arise with increasing frequency.
We recognize the presence of a number of conflicting objectives which must somehow be kept in balance. There is the right of employees under Section 9(a) of the Labor Management Relations Act (29 U.S.C. 159(a)) to have bargaining representatives of their own choosing. But there is the correlative duty of complete loyalty of such representatives to their constituents, Ford Motor Co. v. Huffman et al., 1953, 345 U.S. 330, 338, 73 S.Ct. 681, 97 L.Ed. 1048. On such a loyalty depends in large measure the “reasoned discussion in a background of balanced bargaining relations upon which good faith bargaining must rest”. Phelps Dodge Copper Products Corp., 1952, 101 N.L.R.B. 360, 368. On the other hand, there is the obvious right of pension funds to put their funds to good use and not to be unduly circumscribed in their investment opportunities.
At the same time we are mindful of the increasing concern over the eroding effects of direct and even attenuated conflicts of interest, particularly on the part of public officials. In the labor field, similar concern has found its way into legislation, i. e., the Welfare and Pension Plans Disclosure Act of 1958, 29 U.S.C. Sec. 301 et seq., and the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. Sec. 401 et seq. Moreover, bargaining units have been said to have a quasi-legislative function, binding individuals whether consenting or not. See “Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959”, 58 Mich.L.Rev. 819 n. 4 (1960), citing Steele v. Louisville & N. R. Co. et al., 1944, 323 U.S. 192, 202, 65 S.Ct. 226, 89 L.Ed. 173. But we must also accept the cautionary advice that “Courts should take care, in borrowing fiduciary principles from other areas of the law, to avoid interfering with such union activities”. Note, 37 N.Y.U.L.Rev. 486, 504 (1962). This is particularly pertinent in a field where Congress has not seen fit to attempt specific legislation.
While there is widespread interest in union democracy, as evidenced by the “Bill of Rights” in the Labor Management Reporting and Disclosure Act, supra, Subchapter II, Sec. 411-415, there is good reason for the great national unions to retain considerable central authority to be able to root out subversion and corruption (See Cox, supra, 58 Mich.L.Rev. at 847) and to remain effective in large scale collective bargaining.
The pertinent cases in this field are few. Perhaps the leading case is Bausch & Lomb Optical Company, supra. In this case a local union sought to be recognized as the company’s bargaining agent, despite its ownership of a competing concern in the same city. There was no evidence that the union had taken any action to benefit its own company. The Trial Examiner, in ruling for the union, had observed that any abuses could be cured by invoking remedies available under laws prohibitive of acts in restraint of trade. The Board, however, reversed the ruling, pointing out the necessity for a bargaining agent to have “single-minded purpose” and “complete loyalty”, saying, 108 N.L.R.B. at 1559:
“While we agree with the Trial Examiner that no evidence of specific abuse by the Union in the bargaining relationship has been presented, we cannot ignore or disregard the innate danger involved were we to order this Respondent to bargain with a union which is also its business competitor.”
The Board referred to the mutuality of concern which sometimes leads to a wage compromise between union and management in the interest of business survival and said, “this retarding influence upon inordinate demands may well be eliminated * * *. Indeed, the success of one [company] could well mean the failure of the other.” 108 N.L.R.B. at 1560. It went on to say that it was not fair to put upon the company the burden of trying to disentangle employee from investment motivation, for the company “would be effectively deprived of its right to refuse even to discuss excessive demands designed to force it out of business.” 108 N.L.R.B. at 1561. It observed also that the union, representing 7 of 11 wholesale optical firms and the respondent, had considerable control over the labor market.
It concluded by saying:
“We do not believe it is incumbent upon the Board to hold, in a situation such as involved here, which possesses latent dangers, that merely because the hazards which can be anticipated have not yet been realized, the Respondent-employer is nonetheless under a statutory duty to bargain. We do not mean to imply that given the opportunity the Union would inevitably take advantage of its position in the manner before indicated. It is enough for us that it could and that the temptation is too great.” 108 N.L.R.B. at 1562.
To this must be added Chicago Typographical Union No. 16 et al, 1940, 86 N.L.R.B. 1041. Here the Board recognized almost twenty years ago that “the essential indicia of complete local autonomy” are “freedom in the Local to disregard the ‘advice’ of the International and to conclude negotiations independently.” The Board went on to point out the specific obligations of the local union to submit contract proposals and negotiated contracts to the International for approval, or risk the withholding of strike benefit funds. Although this procedure was not always followed, the Board said, “All we need decide and do decide here is what powers the membership contract vests in the organization.” 86 N.L.R.B. at 1047 n. 15.
Bausch & Lomb was admittedly a clear case of immediate, direct competition. This is a case of contingent competition. But we distill the following points from this and other cases: (1) it is the innate danger to be guarded against; (2) the existence of this danger does not require proof of abuse of trust, so long as there is sufficient power and temptation to commit such abuse; (3) such a danger, if proximate enough, without evidence of present abuse, can poison the collective bargaining process by subjecting every issue to the questioning of ulterior motives; (4) where such proximate danger exists, it is not exorcised by the mere existence of other legal remedies such as those created by anti-trust legislation; and (5) the keystone freedom required on the part of a local union seeking to become an exclusive collective bargaining agent is the freedom to conclude such bargaining negotiations free of the suspicion that it is motivated by any purpose other than its loyalty to the employees it represents.
In seeking to measure the proximateness of the hazard, we see little utility in asking the general question whether or not the local union is “autonomous”. Few locals would have complete autonomy. We can conceive of a local with a large area of autonomy which may nevertheless be required to subordinate or share its authority with its international as to a key function of the bargaining process. It is possible, on the other hand, to conceive of a local which is subordinate in many respects to its parent international union and yet free of any meaningful restriction in its power to set an independent course in its collective bargaining activities. The cases, therefore, which hold that service on a local does not constitute service on an international, e. g., Morgan Drive Away, Inc. v. International Brotherhood of Teamsters et al., 7 Cir., 1959, 268 F.2d 871, cert. denied, 361 U.S. 896, 80 S.Ct. 199, 4 L.Ed.2d 152 (but cf. International Brotherhood of Teamsters et al. v. United States, 4 Cir., 1960, 275 F.2d 610, 614 n. 4, cert. denied, 362 U.S. 975, 80 S.Ct. 1060, 4 L.Ed.2d 1011), or that an international is not responsible for wrongful acts of its locals, e. g., International Brotherhood of Electrical Workers, Local 5 (Franklin Electric Construction Co.), 1958, 121 N.L.R.B. 143, do not necessarily establish the Criteria for resolving a conflicts of interest case. What is required is a selective scrutiny of those key powers which a local bargaining agent must be able to exercise with undivided loyalty if it is to engender confidence at the bargaining table.
Coming to the facts of this case, and focussing on what we feel to be pertinent, Local 380 is subject to the following exercise of' authority by International: (1) to arbitrate a controversy if the General President submits the matter to the General Executive Board and the Board feels that the local should arbitrate (International Constitution, Art. VI, Sec. 3); (2) to submit its management to a trustee appointed by the General President, if the latter believes that the local union is acting to “jeopardize the interests of the International Union, or its subordinate bodies” or if he feels such action is necessary to assure the performance of “duties of a bargaining representative” (Art. VI, Sec. 5(a)); (3) to desist from strike if the General President disapproves (Art. XII, Sec. 1(c)); and (4) to submit proposed collective bargaining contracts to the Joint Council and Area Conference and, if such contract provides for a lower standard of working conditions and wages than those prevailing in the area, to await the approval of the General Executive Board of International (Art. XII, Sec. 11(a) and (d)).
Area Conferences, which have the power to approve proposed collective bargaining agreements and also to name the union trustees on the Fund’s Board are “at all times subject to the unqualified supervision, direction and control of the General President * * * ” (Art. XVI, Sec. 1).
Translating these powers into practical terms, if Local 380 were willing to accept less than the average wages in order to assist respondent to reenter the retail milk delivery market, its ability to so agree is conditioned on acceptance by the Area Conference, which is wholly under the “unqualified supervision, direction, and control of the General President”, and the General Executive Board. But the General President has a fiduciary responsibility to the Fund to see Whiting, a competitor, do as well as possible. On the other hand, if Local 380 wished to ask for substantially higher than average area wages, and were willing to strike for them, the General President faces the possible chain effect of wage escalation on Whiting and might well feel conscience-bound to cause the Area Conference to veto such strike and/or advise the General Executive Board to order arbitration. If Local 380 were zealously to pursue policies which began to hurt Whiting, the General President might even come to the conclusion that the interests of the International (i. e., nearly $5 million of the Fund’s money) were in jeopardy, and order a trusteeship. Alternatively, he or the General Executive Board might feel called upon to bring pressures short of these ultimate sanctions.
These possibilities, the extent to which they constitute “innate dangers”, their effect on the bargaining process, the feasibility of devising reasonable proscriptions and safeguards — these we think ought to have been the concern of the Board, not whether the local union was “affiliated” with the Fund or had participated in the negotiations leading to the Fund’s loan.
Were we to affirm the Board’s petition in this case, we would in effect be giving carte blanche to unthinking debt financing by unions in enterprises with which they had bargaining relationships. Some of these chickens would come home to roost in eases of default and operation of the debtor by the union or its fund. But the more difficult problem would be coping with the problems of collective bargaining while lender and borrower were bending every effort to avoid default.
But were we simply to remand this case to the Board with instructions to dismiss the underlying representation petition, as respondent urges, we would be setting the stage for a wholesale reshuffling of collective bargaining relationships in the milk industry in the Boston area and perhaps beyond, without giving the Board or the International opportunity to try to come to terms with a problem which was not foreseen when a loan was made in undoubtedly good faith to an enterprise in need.
While we have not hesitated to differ with the Board on what we believe to be an issue of judgment involving basic policy where the underlying facts are undisputed and largely documentary, we recognize that, given basic guidelines, the expertise of the Board is necessary to arrive at a workable solution. One thing is sure. What might have been a unique case twelve years ago will be a commonplace of tomorrow if suitable guidelines and safeguards are not devised.
We therefore remand this, matter to the Board for reconsideration in the light of what we have said, in order that it may assess the potential, not merely the actuality, of conflict of interest and frame an order which, hopefully, will balance the legitimate interests of the Fund, respondent, International, Local 380, and respondent’s employees.
. Intervenor in this proceeding and hereafter referred to as “Local 380”. The International union will be referred to as “International”.
. The fund, hereafter called “the Fund”, is the Central States, Southeast & Southwest Areas Pension Fund. This is one of several large pension funds, to which employers and employer associations contribute for the benefit of their employees who are members of International and affiliated union organizations, The Fund is administered by 16 trustees, 8 chosen by various employer groups, and 8 by the four subscribing Area Conferences of International, and their local unions. (These are the Central States Conference of Teamsters, the Central States Drivers Council, the Southern Conference of Teamsters, and the Southern States Drivers Council.) All trustees serve at the pleasure of their appointing authority. In the event of deadlock, provision is made for an agreed upon or court appointed “neutral party”. As of January 31, 1963 the Fund’s assets were $213,389,-484.68.
. The larger of these being Hood’s, Whiting, United Farmers, and Woodland, with a number of smaller dealers and independents.
. An extensive resume of International’s constitution, before 1961, is contained in International Brotherhood of Teamsters et al. v. United States, 4 Cir., 1960, 275 F.2d 610, 612-614, cert. denied, 1960, 362 U.S. 975, 80 S.Ct. 1060, 4 L.Ed.2d 1011. Significant changes were enacted at International’s 1961 convention. General Teamsters, Local 249, 1962, 139 N.L.R.B. 605, contains a further summary of key provisions.
Pertinent sections will be discussed later in the opinion.
. This evidence is in the form of transcripts of Fund meetings and other records which are referred to and drawn upon in a recently published book, James, “Hoffa and the Teamsters — A Study in Union Power”, 1965. The General Oounsel’s opposition to the motion was based on the fact that (1) the underlying records used in the book were not newly discovered, since they were as available to respondent as to the authors; (2) the documents refer to a period of time antedating the Whiting loans; and (3) they do not bear on “the sole issue in this case, i. e., whether Local 380 participated in the negotiations for the aforesaid loan or has any other connection with that transaction.” While, as will be obvious, we feel that “the sole issue” is quite a different one, we do not find reversible error in the Board’s denial of the motion as made. Our reading of the book does not add to our understanding of the basic powers, duties, and temptations, which, wholly apart from a past course of conduct, in our view create the conflict of interest problem. Moreover, the motion raised the specter of masses of documentation much of which would be remote in time and irrelevant to the issue. We add, however, that in reconsidering this matter the Board would do well to ascertain the magnitude of the problem described in the sections entitled “Truckers, Trustees, and Las Vegas Resorts”, and “The Union’s Conflict of Interest”, James, op. cit. supra at 271-273, 292-294.
. The Auburn case illuminates the potential conflict of interest between union investment and union representation. Here the Fund had bought municipal bonds issued by the city of Deming, New Mexico, to build a plant and attract an Indiana rubber company. The Teamsters sought to become the bargaining agent in lieu of the United Rubber Workers, AFL~ CIO, which had represented the company’s employees. The letter asserted that the reason lay in assuring a bargaining policy which would not jeopardize the Fund’s investment. This claim was deemed to have been asserted too late, i. e., after the representation election. The Regional Director, however, went on to say that there appeared to be no conflict. We are not impressed by the extent of analysis given the problem. See 46 Note, Minn.L.Rev. 573, at 582 n. 30 for a critical comment.
. Not cited in any brief submitted to us was the provocative Note, Union Investments in Business: A Source of Union Conflicts of Interest, 46 Minn.L.Rev. 573 (1962), which deals with the problems of conflict of interest in an era when mounting union reserves and pension funds present widespread opportunities for capital investment.
. The most concrete example of this concern is the recent comprehensive revision of laws relating to conflicts of interests affecting federal officials. Public Law 87-849, 76 Stat. 1119 (1962), 18 U.S.C. §§ 201-218 (1963). This was in part stimulated by a report “Conflict of Interest and Federal Service 3 (1960)” by the Special Committee on the Federal Conflict of Interest Laws, of the Association of the Bar of the City of New York. See Petrowitz, “Conflict of Interest in Federal Procurement”, 29 Law and Contemporary Problems 196 (1964).
. A 1959 study, for the Fund for the Republic, by Leo Bromwich, entitled “Union Constitutions”, observes, p. 18: “ * * * the uniformly vast powers granted to the chief executive in the American labor movement lead to the reflection that such crystallization of power is called forth by the union’s very existence — the natural response, perhaps, of a sprawling organization to the compelling pressures of industrial life.”
. Other Board cases bearing on this issue concern unions unsuccessfully seeking to be bargaining representatives of affiliated unions. In each case the Board prohibited the relationship because of the difficulty in maintaining a single-minded purpose. General Teamsters, Local 249, 1962, 139 N.L.R.B. 605; Seafarers International Union, 1962, 138 N.L.R.B. 1142; Oregon Teamsters Security Plan Office, 1957, 119 N.L.R.B. 207.
. At the opposite end of the spectrum from Bausch & Lomb are such cases as those where the union investment was in a cooperative store restricted to members and posed no threat to a store with 2300 employees as in Lord & Taylor, 1965, 150 N.L.R.B. 81, and where union members as individuals took on dual roles when they participated in stock purchase plans, as in Richfield Oil Corp. v. N. L. R. B., 1956, 97 U.S.App.D.C. 383, 231 F.2d 717, 58 A.L.R.2d 833, cert. denied, 351 U.S. 909, 76 S.Ct. 695, 100 L.Ed. 1444.
. Cf. United States v. Mississippi Valley Generating Co., 1960, 364 U.S. 520, 549, 550 n. 14, 81 S.Ct. 294, 5 L.Ed.2d 268.
. “The anti-trust laws * * * seem to provide protection only to competing employers; they provide no remedy to the employees who are represented by a union whieh bargains in bad faith because of conflicting interests.” Note, 46 Minn.L.Rev. at 598.
. See, for example, the discussion in Note, 46 Minn.L.Rev. at 583-586.
. We note that Canon V of the AFL-CIO Code of Ethical Practices 39 (1958) states: “Neither the AFL-CIO nor any national or international union affiliated with the AFL-CIO should invest in or make loans to any business enterprise with which it bargains collectively.” (We also note that there has apparently been no attempt to enforce this provision. Note, 46 Minn.L.Rev. 573, 589). In so noting we do not mean to imply that what has been undertaken voluntarily by one labor organization should by court or administrative fiat be imposed involuntarily on another, particularly where we are concerned with a union-management administered pension fund rather than an international union per se. Our purpose rather is to underscore the need for discriminating analysis in weighing hazards and devising fair and feasible means for dealing with them.
. For example, we note that Article XXV, Sec. 2 of International’s Constitution states:
“If any provision of this Constitution shall be declared invalid or inoperative, by any competent authority of the executive, judicial or administrative branch of the federal or state government, the General Executive Board shall have the authority to suspend the operation of such provision during the period of its invalidity and to substitute in its place and stead a provision which will meet the objections to its validity and which will be in accord with the intent and purpose of the invalid provisions * *
As for the Board’s powers, “It likewise has discretion to place appropriate limitations on the choice of bargaining representatives should it find that public or statutory policies so dictate.” N.L.R.B. v. Jones & Laughlin Steel Corp., 1947, 331 U.S. 416, 422, 67 S.Ct. 1274, 1278, 91 L.Ed. 1575.
. The language of Judge Washington in American Broadcasting Co. v. Federal Communications Commission, 1951, 89 U.S.App.D.C. 298, 191 F.2d 492, 501, may not be inappropriate here: “There would appear to be many possibilities for action in this case. The Commission has never made a determination based upon a thorough study of those possibilities. We think it is incumbent upon the Commission so to do.”
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_appfed
|
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 "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Dr. Lynn A. CAMPBELL, et al., Plaintiffs, Appellants, v. John F. LEHMAN, etc., et al., Defendants, Appellees.
No. 83-1467.
United States Court of Appeals, First Circuit.
Submitted Nov. 7, 1983.
Decided March 2, 1984.
Carlos Bobonis Gonzalez, Santurce, P.R., and Bobonis, Bobonis & Rodriguez Poven-tud, Santurce, P.R., on brief for plaintiffs, appellants.
Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., and Ronald R. Winfrey, Lieutenant Commander, Judge Advocate General’s Corps, United States Navy, Washington, D.C., on brief for defendants, appellees.
Before CAMPBELL, Chief Judge, ROSENN, Senior Circuit Judge, and BOWNES, Circuit Judge.
Of the Third Circuit, sitting by designation.
ROSENN, Senior Circuit Judge.
Plaintiffs Lynn Campbell and Lisardo Ba-tan brought this action challenging regulations regarding eligibility for school board membership in a school system for children of members of the armed forces and other federal employees in Puerto Rico. A new regulation, promulgated by the Commander of the Naval Forces in the Caribbean, provides that “[n]o individual related by blood or marriage to an employee of the [school system] may be a candidate for or a member of the School Board.” Commander U.S. Naval Forces Caribbean (March 1, 1983) Instruction 1755.2C. One effect of the new rule was to prohibit Campbell and Batan, members of the school board, from running for reelection.
Campbell and Batan brought suit in the United States District Court for the District of Puerto Rico against the United States Secretary of the Navy and the United States Secretary of Education attacking the regulations on several grounds. The district court held that the Navy’s regulations were acceptable interim rules pending the promulgation of new regulations by the Department of Education and dismissed plaintiffs’ petition for injunctive relief and a declaratory judgment. Campbell and Ba-tan appeal. We affirm.
Under federal law, the Commissioner (now Secretary) of Education is directed to provide free public education for children residing on federal property or whose parents are employed on federal property, if there are no state tax revenues to pay for the education or if it is the judgment of the Commissioner that the local education agency is unable to provide suitable free public education. 20 U.S.C. § 241(a) (1982). Schools established under this provision, Act of Sept. 30, 1950, ch. 1124, Pub.L. No. 81-874, § 6, 64 Stat. 1100, 1107, are referred to as “section 6 schools.” Under section 8(a) of the Act, the Commissioner was “authorized, pursuant to proper agreement with any other Federal department or agency, to utilize the services and facilities of such department or agency, and, when he deems it necessary or appropriate, to delegate to any officer or employee thereof the function under section 6 of making arrangements for providing free public education.”
Many section 6 schools are located on or near military bases, and frequently the operation of the schools was delegated to the individual branch of the armed services that ran the military installation. See H.R.Rep. No. 1137, 95th Cong., 2d Sess. 107, reprinted in 1978 U.S.Code Cong. & Ad.News 4971, 5076-77. The Antilles Consolidated School System (ACSS), a section 6 school system, comprises all the elementary, middle, and high schools located at certain Puerto Rico military installations.
Parents and teachers of children in the ACSS were dissatisfied with the operation of the schools by the armed forces. In response to their concerns, Congress passed the following amendment in 1978:
The Commissioner [of Education] shall ensure the establishment of an elective school board in schools assisted under this section. Such school board shall be composed of a minimum of three members, elected by the parents of students in attendance at such school. The Commissioner shall, by regulation, establish procedures for carrying out such school board elections as provided in this subsection.
Education Amendments of 1978, Pub.L. No. 95-561, § 1009(d), 92 Stat. 2143, 2309 (codified at 20 U.S.C. § 241(g) (1982)). The House Report specifically mentioned the problem in the Antilles Consolidated School System in Puerto Rico, where “[unilateral authority rest[ed] with the admiral,” and noted that the proposed bill authorized the Commissioner of Education to establish procedures for the election of school boards. See H.R.Rep. No. 1137, 95th Cong., 2d Sess. 107, reprinted in 1978 U.S. Code Cong. & Ad.News 4971, 5077-78.
In 1979, pursuant to congressional direction, the Secretary of Education gave notice of a proposed rule in the federal register mandating procedures for the establishment of elected school boards in section 6 schools. 44 Fed.Reg. 38,223 (proposed June 29, 1979). For reasons unexplained, the Secretary never adopted the proposed rule. In 1981, Congress passed an appropriations bill that reaffirmed the Department of Education’s authority over section 6 schools:
Funds appropriated to the Department of Defense shall be available to the Secretary of Defense for payments and arrangements of the kind that may be made by the Secretary of Education under section 6 .... The Secretary of Defense shall delegate to the Secretary of Education responsibility for the conduct of programs with funds so available.
Omnibus Education Reconciliation Act of 1981, Pub.L. No. 97-35, Title V, § 505(c)(2) — (3), 95 Stat. 441, 443.
Notwithstanding Congress’s express directives, the Department of Education never issued rules to establish an elective school board. Faced with the Secretary of Education’s inaction, in March 1980 the Commander of the Naval Forces in the Caribbean promulgated Instruction 1755.2B, which sets forth a detailed procedure for the establishment of an ACSS school board. The instruction included eligibility requirements for election to the school board, mandating that “[n]o individual employed by or receiving any employment compensation from the ACSS may be a member of the School Board, except for the School Superintendent.” Under Instruction 1755.2B, the parents of ACSS students elected three consecutive school boards, the first of which took office in July 1980. The term of the last elected Board expired under this instruction in July 1983.
On March 1, 1983, the Navy Commander issued Instruction 1755.2C. Instruction 1755.2C modified Instruction 1755.2B and included the following restriction: “No individual related by blood or marriage to an employee of the ACSS may be a candidate for or a member of the School Board.” At the time that Instruction 1755.2C was promulgated, Campbell and Batan had been elected members of the school board. Each is the spouse of a member of the ACSS staff (and a parent of ACSS students). Thus, the new regulation precluded Campbell and Batan from running for reelection.
In the action instituted by Campbell and Batán, they claimed that the anti-nepotism rule is arbitrary and unreasonable. The court ruled that the plaintiffs were es-topped from challenging the rules and that, in any event, the Navy’s regulations were reasonable interim measures. We differ with the court’s holding that the plaintiffs were estopped from challenging the regulations, but we agree that the instructions constituted an acceptable interim response to the Department of Education’s failure to act.
The district court held that “having reaped the benefits derived from these regulations by having full participation in the election procedure and by being elected Board members, [the plaintiffs] cannot now complain of the validity of the regulations or of the lack of authority on the part of the Commander to issue them.” The court cited two cases to support its statement, Federal Power Commission v. Colorado Interstate Gas Co., 348 U.S. 492, 75 S.Ct. 467, 99 L.Ed. 583 (1955), and Kaneb Services v. Federal Savings & Loan Insurance Corp., 650 F.2d 78 (5th Cir.1981). Neither case is applicable.
In each of the above cases, the plaintiff needed agency approval to complete a merger. The approval was granted, subject to conditions. The plaintiff did not seek review of the conditions, but went through with the mergers and accepted the benefits of the rulings. The plaintiff then brought suit challenging the authority of the agency to impose the conditions. In this case, the Navy never imposed the anti-nepotism rule as a prior condition to accepting a benefit enjoyed by the plaintiffs. This is not a situation where Campbell and Batán obtained permission from the Navy based on certain conditions to seek school board office and then, having been elected, renounced the conditions upon which the Navy relied. The plaintiffs are not precluded from challenging the Navy’s authority to promulgate regulations merely because they assumed elective office under one of these regulations. We hold that Campbell and Batán were not estopped from challenging the Navy’s authority to issue the anti-nepotism rule.
The next question is whether the Navy indeed had the authority to promulgate the instructions. Prior to congressional action in 1978, a naval officer ran the school system. The 1978 law explicitly instructed the Department of Education to establish a school board in section 6 schools and to promulgate regulations. The Department of Education issued proposed regulations, but it never implemented them. Congress, by its 1981 appropriations measure, made funds available for the Secretary of Defense for section 6 schools and directed the Secretary of Defense to delegate to the Secretary of Education responsibility for the conduct of programs with such funds. The Navy, in charge of allocating the ACSS funds, concluded that it should also issue instructions for school board elections because of the Department of Education’s failure to adopt regulations. The Navy attempted to fill the vacuum created by the lapse of the Secretary of Education and to carry out congressional intent by creating an independent, elected school board.
The plaintiffs plausibly argue that administrative inaction by one agency cannot be invoked as a source of authority for another agency’s power to formulate regulations. The Navy relies on a memorandum of understanding between the Department of Defense and the Department of Education and asserts that it provides the Navy with authority to issue the regulations. This memorandum arrangement, however, delegates solely fiscal management and reserves the responsibility for the conduct of school programs in the Department of Education. Nevertheless, the district court found that in the absence of action by the Department of Education, the Navy Commander acted in good faith by issuing the instructions.
Congress has expressed its will that the Secretary of Education issue regulations creating and governing the election of a school board in the ACSS. Congress specifically placed the responsibility to promulgate these rules with the Department of Education, and not with the Navy. The district court found that the Navy’s “instructions relative to election procedures were interim regulations issued by the Commander in a good faith effort to fill the gap created by the inaction of the Department of Education and were not meant to substitute regulations which could be put into effect by the latter.” These instructions, only temporary in effect, provide continuity and stability for the school system until regulations are promulgated by the Secretary of Education as required by law. We assume that the Secretary will act promptly to meet his congressional responsibility.
Campbell and Batán also contend that even if the Navy had the authority to issue interim regulations, the anti-nepotism rule is arbitrary and unreasonable and therefore invalid. A regulation designed to prevent potential conflicts of interest in a school board-employee relationship is not unreasonable. See Keckeisen v. Independent School District 612, 509 F.2d 1062, 1066 (8th Cir.), cert. denied, 423 U.S. 833, 96 S.Ct. 57, 46 L.Ed.2d 51 (1975). The district court in this case made a finding of fact that a blood or marriage relationship between a member of the school board and a member of the staff of the ACSS would create “a great potential” for conflicts of interest due to the nature of the school board’s duties and oversight responsibilities. We do not believe that this finding is clearly erroneous.
Under the circumstances of this case, we see no error in the district court’s denial of injunctive and declaratory relief. The Clerk is hereby directed to send a copy of this decision to the Secretary of Education.
Affirmed.
. In the event the Secretary of Education fails to act, the plaintiffs may seek appropriate relief. Campbell and Batán have brought a mandamus action to compel the Department of Education to issue regulations. Apparently at the district court’s direction, the parties went to trial only on the plaintiffs’ claims for relief against the Navy.
Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_oththres
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Robert S. STRAUSS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 74-1028.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 18, 1975.
Decided May 27, 1975.
Robert S. Strauss, Chicago, 111., Hugo E. Martz, Valparaiso University (School of Law), Valparaiso, Ind., for petitioner-appellant.
Donald B. Mackay, U. S. Atty., J. Douglas Weingarten, Asst. U. S. Atty., Springfield, 111., for respondent-appellee.
Before FAIRCHILD, Chief Judge, and CUMMINGS and SPRECHER, Circuit Judges.
CUMMINGS, Circuit Judge.
In September 1968, petitioner Robert Strauss and Thaddeus M. Ohrynowicz were charged with a check-kiting scheme in violation of 18 U.S.C. §§ 1341 and 1342. After a jury trial, petitioner was convicted on Counts II and IV under Section 1341 and on Counts V, VIII and X under Section 1342. The evidence against Strauss is summarized in our pri- or opinion affirming his conviction. United States v. Strauss, 452 F.2d 375 (7th Cir. 1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1252, 31 L.Ed.2d 455. This appeal results from the district court’s denial without opinion of petitioner’s motion under 28 U.S.C. § 2255. We reverse.
Petitioner contends that in light of United States v. Maze, 414 U.S. 395, 94 S.Ct 645, 38 L.Ed.2d 603, it is now clear that the conduct for which he was tried and convicted violates neither Sections 1341 nor 1342. Maze held that 18 U.S.C. § 1341, the so-called mail fraud statute, did not reach a scheme to defraud where an accused obtained goods and services from motel operators through a stolen credit card, knowing that the victims would subsequently mail the sales slips to a bank which would later mail it to the lawful owner of the credit card. The Court reasoned that Maze’s “scheme reached fruition when he checked out of the motel[s], and * * * he probably would have preferred to have the invoice misplaced by the various motel personnel and never mailed at all.” 414 U.S. at 402, 94 S.Ct. at 649. Therefore, the Court held that the mailings were not “sufficiently closely related to Maze’s scheme to bring his conduct within the statute.” 414 U.S. at 399, 94 S.Ct. at 648. Strauss also contends that he was denied the constitutional right to a speedy trial. He claims that if his position as to either of these arguments is accepted, he is entitled to relief under Section 2255.
Conceding that Maze is “retroactive,” the Government agrees with petitioner that a Section 2255 action will lie to attack collaterally on Maze grounds a pre-iliaze mail fraud conviction, citing Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109, and United States v. Travers, 514 F.2d 1171 (2d Cir. 1974). The Government further concedes that the use of the mails proved at trial was insufficiently related to Strauss’ scheme to bring his conduct within Section 1341. Therefore, the Government acquiesces in petitioner’s motion for relief as to Counts II and IV charging Section 1341 violations. With respect to Counts V, VIII and X charging Section 1342 violations, however, the Government makes no similar concessions.
I. The Section 1341 Counts
As noted supra, the Government concedes that the propositions of law set forth in Travers, supra, relating to both the “retroactive” effect of Maze and the availability of collateral relief to attack pre-iliaze convictions are correct. While such government concessions are often useful to a court, they do not, at least as to questions of law that are likely to affect a number of cases in the circuit beyond the one in which the concessions are made, relieve this Court of the duty to make its own resolution of such issues. Thus we proceed to a determination of the legal issues largely independently of the Government’s concessions.
A. Retroactive Effect of Maze
In examining the effect of a Supreme Court decision that, in effect, declares the prior interpretation of a statute by a circuit in error, it is useful to note the characterization of the phrase “the law of the circuit” suggested by Judge Friendly in Travers, supra:
“The Government urges in effect that Maze was indeed an overruling decision in that it changed ‘the law of the circuit’ — indeed of several. But reliance on the quoted expression, of rather recent vintage, which is only a short-hand way of saying that the views of a court of appeals on an issue of federal law may remain undisturbed for a long time, can lead to dangerously wrong results. There are not eleven omnipresences of federal law brooding over various portions of the United States; in the long run there is only one, although some time may be needed to reveal it.” (At 1174, n. 4.)
A similar view was expressed by this Court in Gates v. United States, 515 F.2d 73 at 78 (7th Cir. 1975), where in reference to a Supreme Court decision which settled a split among the circuits as to the meaning of a statute (rejecting the interpretation adopted by this Court), Judge Hastings stated:
“The decision of the Court in [Warden v. Marrero, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383] interpreting the 1970 Comprehensive Drug Abuse Prevention and Control Act was a declaration of what the law had meant from the date of its effectiveness onward. United States v. Estate of Donnelly, 397 U.S. 286, 294-295, 90 S.Ct. 1033, 25 L.Ed.2d 312 (1970). A statute does not mean one thing prior to the Supreme Court’s interpretation and something entirely different after-wards.”
Both Gates, supra, and Travers, supra, rely upon the opinion of this Court in Brough v. United States, 454 F.2d 370 (7th Cir. 1971). In Brough petitioner sought to attack his selective service conviction in a Section 2255 proceeding. Brough argued that a decision of the Supreme Court, which had been handed down after his appeal had been rejected, had shown the interpretation by this Court of the allegedly violated statute to be erroneous. In the opinion granting the relief sought, the Court stated:
“To apply [Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156] prospectively only would indicate that a federal statute duly enacted by Congress could mean one thing prior to the Supreme Court’s interpretation and something entirely different after-wards. Here the relationship of § 3282 to §§ 462 and 453 had never been considered by the Supreme Court prior to Toussie. Nevertheless, a statute, under our system of separate powers of government, can have only one meaning. An interpretive rule, such as 32 C.F.R. § 1611.7(c), concerning that statute is either consistent with the statute or inconsistent. If inconsistent, as the Supreme Court found in Toussie, then the prior interpretation is, and always was, invalid. It necessarily follows that Toussie should have retroactive application in the case at bar.
“In sum, the doctrine of retroactivity has been developed in cases dealing with criminal proceedings where new constitutional procedural protections had been announced. [Citations omitted.]
“We conclude that the standards thus far developed for applying new constitutional protections prospectively only have no application in the instant appeal to the statutory interpretation by the Supreme Court.” (Emphasis in the original, 454 F.2d at 372-373.)
Our evaluation of these cases leads us to accept Judge Friendly’s position that Section 1341 has always had the meaning given it by the Supreme Court in Maze. Thus we hold with the Second Circuit that Maze must be applied “retroactively.” Consequently, the rationale of affirmance in petitioner’s direct appeal was in error.
B. Availability of Collateral Relief
In Davis v. United States, supra, the Supreme Court recognized that a petitioner under 28 U.S.C. § 2255 need not allege a constitutional violation to challenge his sentence successfully. 417 U.S. at 342-346, 94 S.Ct. 2298. Thus in accord with the language of Section 2255, a claim is cognizable thereunder if grounded in the “laws,” as well as in the Constitution, of the United States. The opinion in Davis is careful to note that not every asserted error of law is cognizable under Section 2255, 417 U.S. at 346, 94 S.Ct. 2298. Referring to Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, the Court stated in Davis:
“We suggested [in Hill ] that the appropriate inquiry was whether the claimed error of law was ‘a fundamental defect which inherently results in a complete miscarriage of justice,’ and whether ‘[i]t * * * presents] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.’ * * * The Court did not suggest that any line could be drawn on the basis of whether the claim had its source in the Constitution or in the ‘laws of the United States.’
“In this case, the petitioner’s contention is that the decision in Gutknecht v. United States [396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532], as interpreted and applied by the Court of Appeals for the Ninth Circuit in [United States v. Fox, 454 F.2d 593 (9th Cir. 1971)] after his conviction was affirmed, establishes that his induction order was invalid under the Selective Service Act and that he could not be lawfully convicted for failure to comply with that order. If this contention is well taken, then Davis’ conviction and punishment are for an act that the law does not make criminal. There can be no room for doubt that such a circumstance ‘inherently results in a complete miscarriage of justice’ and ‘presents] exceptional circumstances' that justify collateral relief under § 2255. Therefore, although we express no view on the merits of the petitioner’s claim, we hold that the issue he raises is cognizable in a § 2255 proceeding.” (Emphasis added, 417 U.S. at 346-347, 94 S.Ct. at 2305.)
Since we agree with the Government and petitioner that the mailings proved at trial were not sufficiently closely related to the purpose of the scheme to constitute a violation of Section 1341 under Maze, petitioner’s “conviction and punishment are for an act that the [federal] law does not make criminal.” Therefore, there can be no room for doubt that Travers is correct in holding Section 2255 applicable to a situation like that of the petitioner. Accordingly, the district court must be instructed to grant the petition with respect to the counts involving Section 1341.
II. The Section 1342 Counts
The Government asserts that the Section 1342 counts should be upheld. In its brief, the Government argues:
“The acts charged in these counts were the acts of the defendant Strauss opening up an account in 3 different banks under false names and false addresses. The defendant used these false names and addresses to lead the bank to believe that he could be contacted by mail. This false belief was the basis for the banks opening accounts for the defendant Strauss under the false name and address. Without this false belief, the check-kiting scheme could have proceeded no further.” (Government Brief at 10.)
The quoted paragraph is virtually the entire argument made by the Government for distinguishing Section 1342 from 1341 on the facts of this case.
As summarized by the Government, the evidence with respect to Count V disclosed that on September 12, 1967, Strauss opened a checking account at the National Bank of Bloomington, Illinois, under the false names of Jack Gold and Gold Discount Company, 530 North Center Street, Bloomington,. Illinois. The address was not that of Strauss nor that of Jack Gold. Strauss was told that check orders would be placed by mail, and the bank ordered checks from Deluxe Check Printers, Inc. in Chicago, but they were later found to be undeliverable at the address given by Strauss.
As to Count VIII, the evidence showed that petitioner opened a checking account at the Millikin National Bank in Decatur, Illinois, under the false name of Jack Gold and World Trading Company, 143 East Prairie, Decatur, again resulting in checks being ordered from Deluxe. The address given by petitioner was not that of Strauss, Gold or World Trading Company.
Finally, the evidence under Count X showed that an individual opened an account at the First National Bank, Springfield, Illinois, under the name of Gold Discount Company, with the account card being signed by Jack Gold as sole owner. The address given was 509 East Jefferson Street in Springfield, and checks were ordered from the bank’s check-printing department in Springfield without using the mails.
For conviction, Section 1342 requires that a person must use or assume a fictitious name or address and must have “the purpose of conducting, promoting, or carrying on by means of the Postal Service, any scheme or device mentioned in section 1341 of this title or any other unlawful business * * * ” (emphasis supplied). The statute applies only when the prosecution has established this purpose. United States v. Frank, 494 F.2d 145, 154 (2d Cir. 1974). The Government does not dispute that any receipt of funds by Strauss occurred before the three banks used the mails, nor is it asserted that any of the checks ordered for the fictitious accounts through the mails or otherwise were used in the check-kiting scheme.
Sections 1341 and 1342 have accompanied each other in the statute books through a number of revisions. One court has expressed difficulty in ascertaining what advantage the Government gains by adding counts under Section 1342 to those under Section 1341. United States v. Frank, supra at 154 (Friendly, J.). Thus it is clear that the two statutes are closely related beyond simply being juxtaposed in the United States Code.
In this case the Government has given us no reason to treat Section 1341 differently from Section 1342 with respect to the relation to the mails element. Travers, with which the Government agrees in large part, apparently treated the Section 1341 and 1342 counts in exactly the same way. The Second Circuit opinion notes that Travers attacked the Section 1342 convictions, as well as the Section 1341 convictions, on Maze grounds. Yet in ordering relief on all counts, no separate mention is given to Section 1342. We agree with the view apparently adopted by the Second Circuit in Travers that the “by means of the Postal Service” language in Section 1342 requires the same connection between the use of the mails and the scheme that was found necessary for Section 1341 violations in Maze.
Even assuming the Government to be correct in contending that petitioner “used the false names and addresses to lead the bank to believe that he could be contacted by mail,” the actual use of the mails was not sufficiently closely related to the scheme under Maze to constitute a Section 1342 violation. Like Maze, the petitioner would have undoubtedly preferred to have the advice letters, the only mailings charged, misplaced. Also like Maze, the mailings themselves were not “for the purpose of conducting * * * any scheme.” Thus petitioner did not conduct his check-kiting scheme “by means of the mails” as is required under Section 1342.
As in Travers, the Government failed to prove an essential element in both the Section 1341 and 1342 counts. Therefore, it is unnecessary for us to consider petitioner’s alternative argument that he was denied a speedy trial under case law developed after our decision on the direct appeal.
Since we see no reason on the facts in this case to distinguish Section 1341 from Section 1342 for purposes of “retro-activity” or availability of collateral relief, the order denying petitioner’s motion under 28 U.S.C. § 2255 is reversed, with instructions to grant the motion.
. 18 U.S.C. § 1341 provides:
“Frauds and swindles
“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of,loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.”
18 U.S.C. § 1342 provides:
“Fictitious name or address
“Whoever, for the purpose of conducting, promoting, or carrying on by means of the Postal Service, any scheme or device mentioned in section 1341 of this title or any other unlawful business, uses or assumes, or requests to be addressed by, any fictitious, false, or assumed title, name or address or name other than his own proper name, or takes or receives from any post office or authorized depository of mail matter, any letter, postal card, package, or other mail matter addressed to any such fictitious, false, or assumed title, name, or address, or name other than his own proper name, shall be fined not more than $1,000 or imprisoned not more than five years, or both.”
. In Count II it was alleged that Strauss and Ohrynowicz caused a Decatur, Illinois, bank to mail an “advice letter” on September 12, 1967, to a Springfield, Illinois, bank transmitting a ''orthless check dated September 11, 1967.
Similarly, Count IV alleged that Strauss and Ohrynowicz caused a Springfield bank to mail an “advice letter” on September 13, 1967, to a Normal, Illinois, bank transmitting another worthless check, dated September 12, 1967.
. We need not reach the question whether petitioner’s claim that he was sentenced for conduct that did not violate the statutes charged could be viewed as a constitutional or jurisdic- • tional claim.
. See discussion of the lack of sufficient connection at 985, infra.
. Note the discussion of the ramifications of Davis with respect to pre-Maze convictions in Justice Rehnquist’s dissent in Davis. 417 U.S. at 365-366, 94 S.Ct. 2298.
. Since petitioner appealed his conviction, we are not presented with the problem suggested by Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982, which is discussed in Travers, supra at 1176-1177. Because this is not a case where appeal was foregone by the petitioner, we, unlike the Second Circuit, express no opinion on the availability of Section 2255 relief, in light of Maze, to those persons who did not perfect an appeal from their convictions under Sections 1341 or 1342.
. As to 18 U.S.C. § 1341, see 18 U.S.C. 1940 ed„ § 338 (Mar. 4, 1909, c. 321, § 215, 35 Stat. 1130 [derived from R.S. § 5480; Mar. 2, 1889, c. 393, § 1, 25 Stat. 873] ). As to 18 U.S.C. § 1342, see 18 U.S.C. 1940 ed., § 339 (Mar. 4, 1909, c. 321, § 216, 35 Stat. 1131 [derived from Mar. 2, 1889, c. 393, § 2, 25 Stat. 873).
. Of course, since 18 U.S.C. § 1342 reached the use of a false name or address in connection with any “unlawful business,” its substantive sweep may exceed that of Section 1341 which reaches fraud and similar crimes.
. It is insignificant that the writ in Travers was one for coram nobis, rather than habeas corpus. See Travers, supra, 1174, 1175.
Question: Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_genresp1
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
RENAUD SALES CO., Inc., v. DAVIS. DAVIS v. RENAUD SALES CO., Inc.
Nos. 3425, 3426.
Circuit Court of Appeals, First Circuit.
June 13, 1939.
John H., Glaccum, of New York City (Arthur D. Thomson, of Boston, Mass., and Munn, Anderson & Liddy, of New York City, on the brief), for Renaud Sales Company, Inc.
John W. Walsh, of Boston, Mass., (Harry Ehrlich and David S. Grant, both of Boston, Mass., on the brief), for John H. Davis, etc.
Before WILSON, Circuit Judge, and PETERS and BREWSTER, District Judges.
BREWSTER, District Judge.
These are cross-appeals from a decree of the District Court dismissing the bill of complaint. In this opinion the Renaud Sales Company, Inc., will be referred to as the plaintiff, and John H. Davis as defendant.
The District Court granted a temporary injunction upon condition that the plaintiff give a bond as ordered. A bond was given in the sum of $4,000 upon condition that “if the said Renaud Sales Co., Inc., is successful on the hearing on the merits and the said injunction is made permanent, this bond shall be null and void, but if it should turn out after the hearing on the merits that the temporary injunction about to issue ought not to have issued,” the plaintiff would pay the defendant as liquidating damages the sum of $2,-000 and such further sum up to $4,000 as should be adequately proved to be the costs and damages of the defendant.
It appears from the record that in 1924 the defendant caused to be organized, under the laws of Massachusetts, a corporation with the corporate name of “Renaud et Cie of America”. This corporation obtained the rights to sell and did sell in the United States the so-called Renaud perfumes and extensively advertised them, featuring “Renaud-Paris-1817”. The corporation also registered as a trademark the word <l:Renaud” and represented that it had been in use since 1817. The word, in this and other countries, had come to symbolize perfume of high quality of French origin. By mesne conveyance the plaintiff secured the rights as successor to the business and goodwill of Renaud et Cie of America, including the right to use the trademark. The plaintiff also, by a new contract, procured the exclusive right to sell in the United States and other countries the Renaud perfumes.
The defendant was doing business under the name of Renaud et Cie, and the trial court held that it was unlawfully using the word “Renaud” and the words “Renaud-Paris-1817” in violation of plaintiff’s rights, and was perpetrating a fraud upon the public.
The court held that the complaint should be dismissed because the plaintiff did not come into equity with clean hands. It concluded, nevertheless, that the temporary injunction was properly issued and that the defendant could not recover upon the bond.
The question raised by plaintiff’s assignment -of error is whether on the facts the complaint should have been dismissed. The issue presented by defendant’s assignment is whether the District Judge properly denied recovery of the liquidated damages, as provided in the bond given by the plaintiff to the defendant.
First, as to the plaintiff’s assignment: The court found that Renaud et Cie of America, as sole representative in the United States selling the products of Renaud-Paris-1817, S. A., had succeeded in establishing for Renaud perfumes a well-defined reputation. The essences were purchased in Paris in bulk and bottled in America with little or no change and sold at prices which would entitle the purchaser to high-grade perfume.
After the plaintiff had succeeded to the business, it began to put on the market Ren-aud perfumes at greatly reduced prices. This was made possible by ré-mixing the essence obtained from France with suitable oils and alcohol, whereby a much greater volume was obtained with the same amount of floral essence. The trial court found that a comparison of the perfume sold by the plaintiff with that sold formerly'by Renaud et Cie disclosed a marked difference, that the same trademark and labels were used as were used with respect to the old Renaud perfume, and in no way was the attention of the public called to the fact that there had been any change in the place of origin or the ownership of the concern manufacturing the perfume. Any member of the purchasing public buying the plaintiff’s perfume with the markings appearing on the bottle and on the package would have no reason to suspect that the perfume bought was of a lower quality than the old Renaud perfume.
The trial judge further held and ruled that the conduct on the part of the plaintiff constituted -a fraud upon the public which defeated its rights to equitable relief.
The numerous authorities, both in this country and in England, reviewed by Mr. Justice Shiras in the case of Clinton E. Worden & Co. v. California Fig Syrup Company, 187 U.S. 516, 23 S.Ct. 161, 47 L.Ed. 282, leave no doubt that the conclusion reached by Judge Sweeney was the correct conclusion.
The English case of Pidding v. How, 8 Simon, 477, and the case of Krauss v. Peebles’ Sons Co., C.C., 58 F. 585, 594, were both cases dealing with a new mixture sold under an old name without notice to the public of the change. In the latter case Mr. Justice Taft, as Circuit Judge, said: “To bottle such a mixture, and sell it under the trade label and caution notices above referred to, is a false representation, and a fraud upon, the purchasing public. A court of equity cannot protect property in a trade-mark thus fraudulently used.”
In Clinton E. Worden & Co. v. California Fig Syrup Co., supra [187 U.S. 516, 23 S.Ct. 164], the court cited with approval the case of Prince Mfg. Co. v. Prince’s Metallic Paint Co., 135 N.Y. 24, 31 N.E. 990, 17 L.R.A. 129, where the Court of Appeals of New York used the following language :
“ ‘Any material misrepresentation in a label or trade-mark as to the person by whom the article is manufactured, or as to the place where manufactured, or as to the materials composing it, or any other material false representation, deprives the party of the right to relief in equity. The courts do- not, in such cases, take into consideration the attitude of the defendant. * * * And, although the false article is as good as the true one, “the privilege of deceiving the public, even for their own benefit, is not a legitimate subject of commerce.”. ’ ”
Respecting the defendant’s assignments of error, we are unable to follow the District Judge in his ruling that the injunction was properly issued. As already appears, the theory upon which the -courts have proceeded in denying equitable relief is that the trademark which the proprietor sought to protect has been used as a means of misrepresentation or fraud .upon the public. Therefore, at the time the stiit was brought, the plaintiff had no standing in equity to ask for an injunction against the defendant.
It is settled that the equitable maxim of unclean hands may be invoked even though the matter is not set up as a defense. Celluloid Mfg. Co. v. Read, C.C., 47. F. 712; Memphis Keeley Inst. v. Leslie E. Keeley Co., 6 Cir., 155 F. 964, 974, 16 L.R.A.,N.S., 921; Gynex Corp. v. Dilex Inst., 2 Cir., 85 F.2d 103.
The plaintiff was not refused relief because of any acts committed after the temporary injunction was issued.
Furthermore, it seems to be equally well settled on the authorities that a decree dismissing a bill in equity will be regarded as a judicial determination that the injunction should not have been granted. High on Injunctions, Vol. 2, page 1597; Mica Insulator Co. v. Commercial Mica Co., C.C., 157 F. 92; Robinson v. Fidelity & Deposit Co. of Md., 5 Cal.App.2d 241, 42 P.2d 653; Mitchell v. Sullivan, 30 Kan. 231, 1 P. 518.
It is to be noted that the bond was to become void only in the event that the plaintiff was successful in the hearing on the merits, and the injunction made permanent. That condition has not been met, and it would seem to inevitably follow that the bond had not become null and void.
And since the obligation is not void, we fail to discover any way of escaping the liability arising from the undertaking. The provisions for liquidated damages may, in the circumstances of the case, be somewhat harsh, but the appellate court cannot now intervene to relieve the plaintiff from the hardship. The interlocutory decree is not before us for review.
The final decree of the District Court is reversed, so far as it orders that the temporary injunction issued in the case was properly issued and that the bond, filed by the plaintiff, in support of the temporary injunction, be canceled and annulled. In all other respects the final decree is affirmed.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_applfrom
|
E
|
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).
Osmund McGOWEN, Appellant, v. Patricia R. HARRIS, Secretary of Health and Human Services, Appellee.
No. 80-1557.
United States Court of Appeals, Fourth Circuit.
Submitted Feb. 3, 1981.
Decided Dec. 10, 1981.
Rehearing and Rehearing En Banc Denied Feb. 1,1982.
Peter M. D. Martin, Dennis W. Carroll, Jr., Ethel Zelenske, Legal Aid Bureau, Inc., Baltimore, Md., on brief, for appellant.
Alice Daniel, Asst. Atty. Gen., Washington, D. C., Russell T. Baker, Jr., U. S. Atty., Randolph W. Gaines, Chief of Litigation, Stanley Ericsson, Dept, of Health and Human Services, Baltimore, Md., on brief, for appellee.
Before WIDENER and PHILLIPS, Circuit Judges, and RICHARD L. WILLIAMS, United States District Judge, sitting by designation.
JAMES DICKSON PHILLIPS, Circuit Judge:
Osmund McGowen challenges the district court’s dismissal of his action under 42 U.S.C. § 405(g), in which he sought judicial review of the administrative denial of surviving child’s insurance benefits under the Social Security Act (Act). The district court held that it lacked subject matter jurisdiction to consider the action because the Secretary of Health and Human Services (Secretary) had applied administrative res judicata to deny the claimed benefits. We hold, in disagreement with the district court, that jurisdiction existed to determine whether the Secretary properly applied administrative res judicata or had reopened the claim, but we nevertheless affirm the dismissal because it was manifest on the record before the district court that administrative res judicata was properly applied and that the claim had not been administratively reopened.
I
The course of proceedings leading to dismissal in the district court is as follows. In July 1965, claimant, through his mother, applied for surviving child’s insurance benefits based on his entitlement as the surviving son of Boliver McGowen. In support of this application, claimant presented evidence that Boliver McGowen had orally acknowledged claimant to be his son, that he had sent money for the support of claimant, and that he had paid the hospital bill of claimant’s mother at the time she gave birth to claimant. Claimant did not, however, present any evidence of written acknowledgement of paternity.
In February 1976, the Social Security Administration denied benefits to the claimant. The Administration held that claimant had failed to establish that he was the “child” of McGowen pursuant to the requirements of the Act by showing either that Boliver McGowen had acknowledged in writing that claimant was his son; that he had been ordered by a court to support claimant; that he had been judicially decreed to be claimant’s father; or that he had otherwise been shown to be claimant’s father and was living with claimant or contributing to his support. Claimant, who was not then represented by counsel, did not pursue his administrative remedies by seeking a reconsideration of this adverse determination.
In March 1978, claimant, through his mother and with the aid of counsel, filed a second application for benefits as the surviving child of Boliver McGowen. The Administration denied this claim, finding that the 1976 determination applied because no new issues had been presented. This time claimant sought reconsideration of the denial and presented further evidence that Boliver McGowen had orally acknowledged claimant to be his son. The Administration again denied benefits to claimant on the ground that he had merely established that McGowen was his biological father while failing to present any new and material evidence showing regular and substantial contributions by McGowen for claimant’s support.
Claimant requested and was granted a hearing before an administrative law judge in which he presented further evidence of open and notorious recognition by McGowen and regular and substantial contributions from McGowen to claimant’s support. He also presented evidence of written acknowledgement of paternity by McGowen. In addition, he argued that under Maryland’s intestate succession laws, which as the law of the child’s domicile should be looked to under choice of law principles, he would be regarded as legitimate, and that, even if the law of Michigan — McGowen’s domicile — were applied, the Michigan intestate succession statute, under which he would be regarded as illegitimate, was unconstitutional. The administrative law judge issued a decision in which he concluded that claimant was the biological child of McGowen; that no new and material evidence had been submitted to show regular and substantial contributions from McGowen for claimant’s support; and that, therefore, the Administration’s previous decision to deny benefits was res judicata on the issue of claimant’s entitlement to benefits. The administrative law judge made no findings with respect to the other evidence or arguments submitted by claimant.
Claimant sought Appeals Council review, and the Appeals Council affirmed the administrative law judge’s order of dismissal. In a letter to claimant’s mother, which was attached to the complaint as an exhibit, the Appeals Council gave as a reason for its affirmance the conclusion that there was no evidence submitted on the issues of support or written acknowledgement “so new and material as to warrant a reopening of the prior determination.” Moreover, the Appeals Council stated that the law of Michigan would be controlling on the issue whether claimant was “legitimate” so as to be entitled to benefits under the Act and that under Michigan law claimant could not establish his legitimacy.
Claimant then sought judicial review by complaint filed in district court, asserting jurisdiction under 42 U.S.C. § 405(g). In his complaint, claimant attacked as erroneous the Secretary’s application of administrative res judicata to what he contended were facts and issues that had not been considered before. He then claimed that a review of these facts and issues on their merits would result in the conclusion that the Secretary’s denial of benefits to him was not supported by substantial evidence.
The Secretary responded by filing a motion to dismiss and brief in support of that motion in which she argued that, because the Administration had denied claimant’s second claim for benefits on the basis of administrative res judicata, the district court, under the Supreme Court’s decision in Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), was without jurisdiction to review that decision. Rather than responding to this motion to dismiss, claimant filed his own motion, supported by a memorandum, to compel the Secretary to file a transcript of the administrative record. The Secretary then filed a memorandum in opposition to claimant’s motion to compel in which she argued that the court lacked the power to enter any coercive order against the Secretary, including an order to file a transcript, because it lacked jurisdiction over the subject matter.
The district court granted the Secretary’s motion to dismiss, holding that the Secretary’s determination of administrative res judicata deprived it of jurisdiction over the majority of issues raised in claimant’s complaint. It found, however, that claimant’s challenge to the constitutionality of Michigan’s intestacy statute constituted an exception to the Sanders rule over which it did have jurisdiction. But the district court concluded that it need not reach this constitutional question because the Act provided means other than establishment of legitimacy by which a claimant might prove his entitlement to benefits. This appeal followed.
II
The fundamental issue here is the vexed, recurring one of the effect upon judicial review under 42 U.S.C. § 405(g) of the Secretary’s application of administrative res judicata to deny a social security claim. The Secretary’s position on this appeal seems to be the extreme one that, subject only to cases where a constitutional question related to the denial is raised, the Secretary’s mere assertion in the district court that res judicata was applied conclusively establishes that the court lacks jurisdiction to engage in any judicial review. To the contrary, the claimant contends that the district court necessarily has jurisdiction to determine whether, as decisive of its jurisdiction to review on the merits, res judicata was in fact applied and, if so, whether it was properly applied. Beyond this, claimant contends that in order to make this jurisdictional determination, it is necessary that the administrative record be considered by the district court and that the court’s refusal here to do so was consequently error requiring reversal and remand.
For reasons that follow, we agree with the claimant that when the Secretary challenges jurisdiction on this basis, the district court has jurisdiction to determine its own jurisdiction by examining the res judicata predicate, and that ordinarily this will require consideration of the administrative record, but we disagree that it was necessary here in order to affirm the Secretary’s denial.
A
Without attempting exhaustive analysis of the principal decisions of the Supreme Court and of this court that have addressed various aspects of the dispositive issue, we think that the following principles drawn from those decisions and from relevant statutes and regulations control decision here.
1. The combined effect of 42 U.S.C. § 405(g) and (h) is to establish a power in the Secretary to deny any social security claim on the basis that it has earlier been denied on the merits by a final administrative decision, i.e., to apply administrative res judicata in bar. Easley v. Finch, 431 F.2d 1351, 1353 (4th Cir. 1970).
2. An earlier administrative decision at any level in the adjudicative process may be final and therefore properly treated as preclusive of a subsequent claim either because the decision has been judicially affirmed or because administrative reconsideration, hearing, or review, or judicial review has not been timely sought. Shrader v. Harris, 631 F.2d 297, 300-01 (4th Cir. 1980); Leviner v. Richardson, 443 F.2d 1338, 1342 (4th Cir. 1971); see also 20 C.F.R. § 404.957(c)(1) (1981) (superseding 20 C.F.R. § 404.937(a) (1980)).
3. When, following any final administrative decision denying a claim on the merits a claimant files a subsequent claim, the Secretary may properly apply administrative res judicata in bar only if it is the “same” claim earlier denied. 20 C.F.R. § 404.957(c)(1) (1981) (superseding 20 C.F.R. § 404.937(a) (1980)). Whether it is the same claim must necessarily be determined according to general principles of res judicata respecting the scope of a claim for purposes of merger and bar as adapted to the social security claim context. See Restatement (Second) of Judgments § 61 (1980). Even though it is the same claim, the Secretary may nevertheless, within time limits and for “good cause” shown, reopen the claim and consider it on the merits, with or without new evidence. 20 C.F.R. § 404.989 (1981) (superseding 20 C.F.R. § 404.958 (1980)).
4. Assuming that the same claim is involved, and unless a constitutional objection to applying res judicata is raised in the district court, see, e.g., Shrader v. Harris, 631 F.2d at 300, the district court is without jurisdiction under 42 U.S.C. § 405(g) to engage in judicial review either of a decision by the Secretary not to reopen the claim, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); Matos v. Secretary of Health, Education and Welfare, 581 F.2d 282, 286-87 (1st Cir. 1978), or to apply administrative res judicata as a bar to it, Teague v. Califano, 560 F.2d 615, 618 (4th Cir. 1977).
5. On the other hand, if administrative res judicata has been applied in bar of a subsequent claim which, properly assessed, is not the same for res judicata purposes, jurisdiction to engage in judicial review exists. In that situation the subsequent claim is necessarily, in legal contemplation, a different one whose merits have never been addressed administratively. In consequence the Secretary’s decision denying the claim was one as to which the claimant was entitled to a hearing and hence, to judicial review of the denial. Cf. Califano v. Sanders, 430 U.S. at 107-08, 97 S.Ct. at 985-86 (refusal to reopen not reviewable because no entitlement to hearing).
6. By the same token, even though the subsequent claim be the same claim for res judicata purposes, if it has nevertheless been reconsidered on the merits to any extent and at any administrative level, it is thereupon properly treated as having been, to that extent, reopened as a matter of administrative discretion under 20 C.F.R. § 404.989 (1981) (superseding 20 C.F.R. 404.-958 (1980)). In that event a final decision of the Secretary denying the claim is also subject to judicial review to the extent of the reopening, without regard to the expressed basis for the Secretary’s denial. See Farley v. Califano, 599 F.2d 606 (4th Cir. 1979).
7. From this it is evident that upon a challenge to its jurisdiction on the basis that administrative res judicata has been applied in bar of a claim, or that discretionary reopening of a previously denied claim has been denied, or both, the district court has jurisdiction to determine, as appropriate, whether res judicata has properly been applied, or whether, though res judicata might properly have been applied, the claim has nevertheless been reopened. See Farley v. Califano, 599 F.2d at 608 & n.4. In this the court simply exercises its inherent jurisdiction to determine its own jurisdiction. Texas & Pacific Railway v. Gulf, Colorado & Santa Fe Railway, 270 U.S. 266, 274, 46 S.Ct. 263, 265, 70 L.Ed. 578 (1927). If the court determines that jurisdiction exists either because administrative res judicata was not properly applied, or because the denied claim has been either formally or by legal implication reopened, it may then of course judicially review the Secretary’s final decision denying the claim.
8. In order to make this jurisdictional determination, the district court must have before it a record sufficient to determine the scope of the successive claims for res judicata purposes, see Farley v. Califano, 599 F.2d at 608 & n.4; Restatement (Second) of Judgments § 61 (1980), or to determine whether the claim, though subject to administrative res judicata, has in fact been administratively reopened to any extent. This may well require that the entire administrative record be made a part of the district court record, but not necessarily. If the identity of claims or the fact of reopening is otherwise apparent as a matter of law from the district court record, the determination may of course be made on that basis.
9. The district court is obviously free to make its independent determination, subject to appellate review, of the jurisdictional questions, including the scope of successive claims for res judicata purposes and whether a denied claim has been administratively reopened, without regard to any determinations or assertions by the Secretary respecting those matters.
B
Applying these principles, we hold that the district court properly dismissed the action for lack of jurisdiction to review the Secretary’s denial of the claim.
As indicated, this was the appropriate action if the Secretary’s application of administrative res judicata was legally correct, and if the original claim was not administratively reopened by reconsidering it on the merits notwithstanding it may have been subject to res judicata. In turn, this depends upon whether the successive claims were the same for res judicata purposes. If they were not, res judicata could not properly be applied, and jurisdiction to review denial of the subsequent, and necessarily different, claim exists without regard to whether the original claim was administratively reopened. If they were the same claim, jurisdiction exists only if the original claim was administratively reopened by reconsidering it to some extent on the merits. As also indicated, it lay with the district court to make independent determination of these jurisdictional questions, subject of course to appellate review.
We conclude that on the record before the district court, and without need for recourse to the full administrative record, it appeared as a matter of law that (1) the successive claims were the same claim for res judicata purposes and (2) the original claim was not administratively reopened by considering it on the merits.
(D
Same claim. From the record before the district court it conclusively appeared that, for res judicata purposes, claimant has advanced but one claim. This was a claim of entitlement under the Social Security Act to insurance benefits as the surviving dependent child of a particular insured wage earner, Boliver McGowen. See 42 U.S.C. §§ 402(d)(1), 416(e). In legal contemplation this is a single claim. See Restatement (Second) of Judgments § 61 (1980). The unitary nature of the claim is not affected by the fact that following denial on the merits of the claim as originally presented, the claimant presented “new and material” evidence tending to establish that he was the wage earner’s dependent natural child and new legal theories of dependency based upon the intestacy laws of two states (alternatively). See Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 2209, 60 L.Ed.2d 767 (1979); Restatement (Second) of Judgments § 61, Comment c (1980); id. § 61.1(a), Comments b, d; cf. Teague v. Califano, 560 F.2d 615 (4th Cir. 1977) (new and material evidence of a different claim).
Since but a single claim was here involved and no constitutional objection to applying administrative res judicata in normal course was advanced, cf. Shrader v. Harris, 631 F.2d 297 (4th Cir. 1980) (denial of due process if claimant incompetent), the Secretary properly concluded that administrative res judicata lay to bar the claim’s relitigation.
(2)
Claim not reopened. Notwithstanding that administrative res judicata might properly have been applied, jurisdiction still lay in the district court to review on the merits any aspect of the single claim that was reconsidered on the merits in exercise of administrative discretion. See, e.g., Farley v. Califano, 599 F.2d 606 (4th Cir. 1979). We are satisfied that no reconsideration on the merits occurred here, and that the district court accordingly lacked jurisdiction to review the Secretary’s discretionary decision not to reopen. Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).
It might be contended that in addressing the claimant’s “new” evidence of biological parentage through acknowledgement and of substantial support by the wage earner, and in addressing the claimant’s “new” legal theories based upon the intestacy laws of Maryland and Michigan, the ALJ and the Appeals Council in legal effect, though not formally, reopened the claim, thereby exposing the Secretary’s final decision to judicial review. We do not think that, properly assessed, this is the correct interpretation of the administrative actions.
Of necessity when a social security claimant presents any claim that is arguably the same one earlier denied on the merits, the Secretary must in fairness look far enough into the proffered factual and legal support to determine whether it is the same claim, and if so, whether it should nevertheless be reopened as a discretionary matter. That the evidence offered is “new and material” may have significance on both points. If it is sufficiently “new” it may reveal the existence of a different claim, hence the inapplicability of res judicata. Or, though “new and material” it may nevertheless be revealed as going only to establish the same claim earlier denied, so that res judicata is legally available to bar its consideration on the merits. Finally, even if merely probative of the same claim, it may be sufficiently “new and material” that, considered with other factors, it justifies reopening the claim as a discretionary matter. See 20 C.F.R. § 404.989(a)(1) (1981).
In fairness to the claimant, the results of this threshold inquiry may be reported as a prelude to reporting the dispositive administrative action taken. See 20 C.F.R. § 404.-992(a) (1981). Thus, an ALJ may state in a formal decision, as here, that though the claimant had presented sufficient new evidence to establish biological parentage of the wage earner, his new evidence of dependency was not sufficiently “new and material” to warrant reopening and that it went merely to establish the same claim for res judicata purposes. When, as here, this is followed by a specific conclusion that the claim should be denied on res judicata grounds, the threshold inquiry into the nature of the evidence should not be read as a reopening of this claim on the merits.
We think the same assessment is proper in respect of the Appeals Council’s letter to the claimant’s mother explaining the basis of its affirmance of the ALJ’s dismissal on res judicata grounds and its determination that the evidence newly proffered did not justify reopening. This cannot properly be treated as a consideration of that evidence on its merits, hence a reopening of the claim such as we found in Farley v. Califano. On only one basis could the Appeals Council’s decision be considered to have reopened the claim on the merits. This was its stated conclusion that the Michigan intestacy law would control the question of claimant’s legitimacy, hence dependency, and that it would not support the claim. If judicial review of this determination had been pursued, we are not prepared to say that jurisdiction to consider it would not have existed. We need not consider that possibility, however, since claimant has expressly abandoned this theory as a subject for judicial review. See note 2, supra.
Ill
Because on a proper assessment of the record before it the district court could properly have concluded that administrative res judicata was properly applied by the Secretary and that the Secretary had not reopened the claim so as to expose its denial to judicial review, we affirm dismissal of the action for lack of jurisdiction.
AFFIRMED.
. Because the Secretary refused and was not required by the district court to file a transcript of the administrative record in this case, we rely on the allegations of the complaint for the facts concerning the course of the administrative proceedings, taking them as true in passing on the validity of the district court’s decision to dismiss the case. See, e.g., Johnson v. Mueller, 415 F.2d 354 (4th Cir. 1969).
. Claimant has expressly waived on appeal the issue of the constitutionality of the Michigan intestacy statute. We therefore have no need to consider the district court’s basis for rejecting it.
. Teague v. Califano presented a frequently recurring situation in which the same claim determination can be more difficult: a subsequent claim based on “new evidence” of exacerbation of an originally found disability for which benefits have been judicially terminated. We held in Teague that both the Secretary and the district court had correctly determined that administrative res judicata lay to bar relitigation of the termination decision, so that judicial review of that decision was precluded, but that jurisdiction lay to review the timely challenged rejection by the Secretary of the “new” claim of exacerbated disability.
. This letter — included as part of the district court record — fully embodied the formal decision of the Appeals Council, denominated as “Action of Appeals Council on Request for Review.” In its critical parts this final administrative decision concluded (a) that there “is no basis under the [controlling] regulations for granting [the] request for review”; (b) that Michigan law would control in respect of dependency by intestacy and that it could not support the claim; (c) that “good cause” had not been shown for reopening the claim; and (d) that “no substantial evidence ... of support or of any written acknowledgment” had been submitted to it; and on this basis decided that “the hearing decision [by the ALJ] stands as the final decision of the Secretary in your case.”
The ultimate administrative decision is therefore revealed to be that the ALJ’s decision “stands as the final decision of the Secretary.” Though the full text of the ALJ decision was not a part of the record upon which the district court dismissed on jurisdictional grounds, the critical operative elements of that decision were before the district court and are before us in the form of claimant’s allegation of their substance in his complaint (prepared by counsel) seeking judicial review. As there alleged, the ALJ’s decision (a) concluded that though claimant was the son of the wage earner “as proven in the prior application,” (b) “no new and material evidence had been submitted showing regular or substantial contribution . . . for [claimant’s] support, so that (c) “the issues were therefore res judicata and should not be inquired into again.”
The upshot of the Appeals Council decision, as sufficiently revealed on the record before the district court, was therefore (1) to affirm thé ALJ’s decision to apply res judicata, and (2) to decide that reopening of the claim by the Appeals Council was not warranted for “good cause” because there was not “substantial evidence” submitted of wage-earner support or acknowledgment. Aside from the Appeals Council’s determination respecting Michigan law’s application, its decision is thus conclusively revealed as a discretionary refusal to reopen and a determination to apply administrative res judicata in bar of the claim (by affirming the ALJ’s decision so to do).
. While we have held that the full administrative record was not needed here to make the dispositive jurisdictional determination, we observe that this will not ordinarily be the case, particularly with respect to the question whether a claim may have been reopened in legal effect, though not formally. Accordingly, we observe that in challenging jurisdiction, as here, the Secretary’s better practice would be routinely to file a copy of the administrative record to aid in making the jurisdictional inquiries here discussed. See 20 C.F.R. § 404.-951(b) (1981). Certainly fair appellate review of the jurisdictional determination would always be enhanced. No waiver of jurisdictional objections could of course be implied from providing the administrative record.
We are justified in this case in our reliance on the allegations of the complaint to piece out the administrative proceedings by the fact that the decision of the ALJ was as readily available to the claimant as to the Secretary, yet the document itself was not exhibited. Thus, we do not suppose the ALJ’s decision is at variance with the allegations of the complaint, so that we may properly construe the decision of the Appeals Council as finding a failure of evidence to justify reopening and not a failure of evidence to support the proposition contended for by the claimant. See note 4, supra.
. We observe that the actions of the ALJ and the Appeals Council here were not calculated to make the jurisdictional determination an easy one. It would be helpful to the courts in making the jurisdictional determinations that are forced by the Secretary’s administrative res judicata and reopening decisions if those decisions were clearly expressed and justified as such in the administrative proceedings. Particularly difficult, if not clearly expressed, is the question whether in addressing “new evidence” and “new legal theories” advanced by a claimant, the Secretary is merely assessing their res judicata implications or their possible justification for reopening a claim, or is Considering them on the merits, and thereby, in legal effect, reopening the claim.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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sc_certreason
|
K
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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.
NATIONAL FARMERS UNION INSURANCE COS. et al. v. CROW TRIBE OF INDIANS et al.
No. 84-320.
Argued April 16, 1985
Decided June 3, 1985
Stevens, J., delivered the opinion for a unanimous Court.
Rodney T. Hartman argued the cause for petitioners. With him on briefs was Jack Ramirez.
Clay Riggs Smith, Assistant Attorney General of Montana, argued the cause for the State of Montana et al. as amici curiae urging reversal. With him on the brief were Michael T. Greely, Attorney General of Montana, Rick Barios, Norman C. Gorsuch, Attorney General of Alaska, Robert K. Corbin, Attorney General of Arizona, Jim Jones, Attorney General of Idaho, Hubert H. Humphrey III, Attorney General of Minnesota, Paul Bardacke, Attorney General of New Mexico, Lacy Thornburg, Attorney General of North Carolina, and Robert E. Cansler, Assistant Attorney General, Michael Turpén, Attorney General of Oklahoma, Mark V. Meierhenry, Attorney General of South Dakota, Bronson C. LaFollette, Attorney General of Wisconsin, and Archie G. McClintock, Attorney General of Wyoming.
Clarence T. Belue, by appointment of the Court, 469 U. S. 1104, argued the cause for respondents and filed a brief for respondents Sage et al. Robert S. Pelcyger filed a brief for the Crow respondents.
Deputy Solicitor General Claiborne argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Lee, and Assistant Attorney General Habicht.
Briefs of amici curiae urging reversal were filed for the State of Washington by Kenneth 0. Eikenberry, Attorney General, and Timothy R. Malone, Assistant Attorney General; and for the Salt River Project Agricultural Improvement and Power District et al. by Robert B. Hoffman and Frederick J. Martone.
Briefs of amici curiae urging affirmance were filed for the Assiniboine and Sioux Tribes of the Fort Peck Reservation et al. by Arthur Lazarus, Jr,, W. Richard West, Jr., Reid Peyton Chambers, Kevin A. Griffin, and George E. Fettinger; and for the Salt River Pima-Maricopa Indian Community et al. by Rodney B. Lewis and Richard B. Wilks.
Justice Stevens
delivered the opinion of the Court.
A member of the Crow Tribe of Indians filed suit against the Lodge Grass School District No. 27 (School District) in the Crow Tribal Court and obtained a default judgment. Thereafter, the School District and its insurer, National Farmers Union Insurance Companies (National), commenced this litigation in the District Court for the District of Montana; that court was persuaded that the Crow Tribal Court had no jurisdiction over a civil action against a non-Indian and entered an injunction against further proceedings in the Tribal Court. The Court of Appeals reversed, holding that the District Court had no jurisdiction to enter such an injunction. We granted certiorari to consider whether the District Court properly entertained petitioners’ request for an injunction under 28 U. S. C. § 1331. 469 U. S. 1032 (1984).
The facts as found by the District Court are not substantially disputed. On May 27, 1982, Leroy Sage, a Crow Indian minor, was struck by a motorcycle in the Lodge Grass Elementary School parking lot while returning from a school activity. The school has a student body that is 85% Crow Indian. It is located on land owned by the State within the boundaries of the Crow Indian Reservation. Through his guardian, Flora Not Afraid, Sage initiated a lawsuit in the Crow Tribal Court against the School District, a political subdivision of the State, alleging damages of $153,000, including medical expenses of $3,000 and pain and suffering of $150,000.
On September 28, 1982, process was served by Dexter Falls Down on Wesley Falls Down, the Chairman of the School Board. For reasons that have not been explained, Wesley Falls Down failed to notify anyone that a suit had been filed. On October 19, 1982, a default judgment was entered pursuant to the rules of the Tribal Court, and on October 25, 1982, Judge Roundface entered findings of fact, conclusions of law, and a judgment for $158,000 against the School District. Sage v. Lodge Grass School District, 10 Indian L. Rep. 6019 (1982). A copy of that judgment was hand-delivered by Wesley Falls Down to the school Principal who, in turn, forwarded it to National on October 29, 1982.
On November 3, 1982, National and the School District (petitioners) filed a verified complaint and a motion for a temporary restraining order in the District Court for the District of Montana. The complaint named as defendants the Crow Tribe of Indians, the Tribal Council, the Tribal Court, judges of the court, and the Chairman of the Tribal Council. It described the entry of the default judgment, alleged that a writ of execution might issue on the following day, and asserted that a seizure of school property would cause irreparable injury to the School District and would violate the petitioners’ constitutional and statutory rights. The District Court entered an order restraining all the defendants “from attempting to assert jurisdiction over plaintiffs or issuing writs of execution out of Cause No. Civ. 82-287 of the Crow Tribal Court until this court orders otherwise.”
In subsequent proceedings, the petitioners filed an amendment to their complaint, invoking 28 U. S. C. §1331 as a basis for federal jurisdiction, and added Flora Not Afraid and Leroy Sage as parties defendant. After the temporary restraining order expired, a hearing was held on the defendants’ motion to dismiss the complaint and on the plaintiffs’ motion for a preliminary injunction. On December 29, 1982, the District Court granted the plaintiffs a permanent injunction against any execution of the Tribal Court judgment. 560 F. Supp. 213, 218 (1983). The basis “for the injunction was that the Crow Tribal Court lacked subject-matter jurisdiction over the tort that was the basis of the default judgment.” Id., at 214.
A divided panel of the Court of Appeals for the Ninth Circuit reversed. 736 F. 2d 1320 (1984). Without reaching the merits of petitioners’ challenge to the jurisdiction of the Tribal Court, the majority concluded that the District Court’s exercise of jurisdiction could not be supported on any constitutional, statutory, or common-law ground. Id., at 1322-1323. One judge dissented in part and concurred in the result, expressing the opinion that petitioners stated a federal common-law cause of action involving a substantial federal question over which subject-matter jurisdiction was conferred by 28 U. S. C. § 1331. He concluded, however, that the petitioners had a duty to exhaust their Tribal Court remedies before invoking the jurisdiction of a federal court, and therefore concurred in the judgment directing that the complaint be dismissed. Id., at 1324-1326.
I
Section 1331 of the Judicial Code provides that a federal district court “shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” It is well settled that this statutory grant of “jurisdiction will support claims founded upon federal common law as well as those of a statutory origin.” Federal common law as articulated in rules that are fashioned by court decisions are “laws” as that term is used in § 1331.
Thus, in order to invoke a federal district court’s jurisdiction under § 1331, it was not essential that the petitioners base their claim on a federal statute or a provision of the Constitution. It was, however, necessary to assert a claim “arising under” federal law. As Justice Holmes wrote for the Court, a “suit arises under the law that creates the cause of action.” Petitioners contend that the right which they assert — a right to be protected against an unlawful exercise of Tribal Court judicial power — has its source in federal law because federal law defines the outer boundaries of an Indian tribe’s power over non-Indians.
As we have often noted, Indian tribes occupy a unique status under our law. At one time they exercised virtually unlimited power over their own members as well as those who were permitted to join their communities. Today, however, the power of the Federal Government over the Indian tribes is plenary. Federal law, implemented by statute, by treaty, by administrative regulations, and by judicial decisions, provides significant protection for the individual, territorial, and political rights of the Indian tribes. The tribes also retain some of the inherent powers of the self-governing political communities that were formed long before Europeans first settled in North America.
This Court has frequently been required to decide questions concerning the extent to which Indian tribes have retained the power to regulate the affairs of non-Indians. We have also been confronted with a series of questions concerning the extent to which a tribe’s power to engage in commerce has included an immunity from state taxation. In all of these cases, the governing rule of decision has been provided by federal law. In this case the petitioners contend that the Tribal Court has no power to enter a judgment against them. Assuming that the power to resolve disputes arising within the territory governed by the Tribe was once an attribute of inherent tribal sovereignty, the petitioners, in essence, contend that the Tribe has to some extent been divested of this aspect of sovereignty. More particularly, when they invoke the jurisdiction of a federal court under § 1331, they must contend that federal law has curtailed the powers of the Tribe, and thus afforded them the basis for the relief they seek in a federal forum.
The question whether an Indian tribe retains the power to compel a non-Indian property owner to submit to the civil jurisdiction of a tribal court is one that must be answered by reference to federal law and is a “federal question” under §1331. Because petitioners contend that federal law has divested the Tribe of this aspect of sovereignty, it is federal law on which they rely as a basis for the asserted right of freedom from Tribal Court interference. They have, therefore, filed an action “arising under” federal law within the meaning of § 1331. The District Court correctly concluded that a federal court may determine under § 1331 whether a tribal court has exceeded the lawful limits of its jurisdiction.
“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. ... 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.
“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,
II
Respondents’ contend that, even though the District Court’s jurisdiction was properly invoked under § 1331, the Court of Appeals was correct in ordering that the complaint be dismissed because the petitioners failed to exhaust their remedies in the tribal judicial system. They further assert that the underlying tort action “has turned into a procedural and jurisdictional nightmare” because petitioners did not pursue their readily available Tribal Court remedies. Petitioners, in response, relying in part on Oliphant v. Suquamish Indian Tribe, 435 U. S. 191 (1978), assert.that resort to exhaustion as a matter of comity “is manifestly inappropriate.”
In Oliphant we held that the Suquamish Indian Tribal Court did not have criminal jurisdiction to try and to punish non-Indians for offenses committed on the reservation. That holding adopted the reasoning of early opinions of two United States Attorneys General, and concluded that federal legislation conferring jurisdiction on the federal courts to try non-Indians for offenses committed in Indian Country had implicitly pre-empted tribal jurisdiction. We wrote:
“While Congress never expressly forbade Indian tribes to impose criminal penalties on non-Indians, we now make express our implicit conclusion of nearly a century ago that Congress consistently believed this to be the necessary result of its repeated legislative actions.” Id., at 204.
If we were to apply the Oliphant rule here, it is plain that any exhaustion requirement would be completely foreclosed because federal courts would always be the only forums for civil actions against non-Indians. For several reasons, however, the reasoning of Oliphant does not apply to this case. First, although Congress’ decision to extend the criminal jurisdiction of the federal courts to offenses committed by non-Indians against Indians within Indian Country supported the holding in Oliphant, there is no comparable legislation granting the federal courts jurisdiction over civil disputes between Indians and non-Indians that arise on an Indian reservation. Moreover, the opinion of one Attorney General on which we relied in Oliphant, specifically noted the difference between civil and criminal jurisdiction. Speaking of civil jurisdiction, Attorney General Cushing wrote:
“But there is no provision of treaty, and no statute, which takes away from the Choctaws jurisdiction of a case like this, a question of property strictly internal to the Chocktaw nation; nor is there any written law which confers jurisdiction of such a case in any court of the United States.
“The conclusion seems to me irresistible, not that such questions are justiciable nowhere, but that they remain subject to the local jurisdiction of the Chocktaws.
“Now, it is admitted on all hands . . . that Congress has ‘paramount right to legislate in regard to this question, in all its relations. It has legislated, in so far as it saw fit, by taking jurisdiction in criminal matters, and omitting to take jurisdiction in civil matters. ... By all possible rules of construction the inference is clear that jurisdiction is left to the Choctaws themselves of civil controversies arising strictly within the Chocktaw Nation.” 7 Op. Atty. Gen. 175, 179-181 (1855) (emphasis added).
Thus, we conclude that the answer to the question whether a tribal court has the power to exercise civil subject-matter jurisdiction over non-Indians in a case of this kind is not automatically foreclosed, as an extension of Oliphant would require. Rather, the existence and extent of a tribal court’s jurisdiction will require a careful examination of tribal sovereignty, the extent to which that sovereignty has been altered, divested, or diminished, as well as a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and adminstrative or judicial decisions.
We believe that examination should be conducted in the first instance in the Tribal Court itself. Our cases have often recognized that Congress is committed to a policy of supporting tribal self-government and self-determination. That policy favors a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge. Moreover the orderly administration of justice in the federal court will be served by allowing a full record to be developed in the Tribal Court before either the merits or any question concerning appropriate relief is addressed. The risks of the kind of “procedural nightmare” that has allegedly developed in this case will be minimized if the federal court stays its hand until after the Tribal Court has had a full opportunity to determine its own jurisdiction and to rectify any errors it may have made. Exhaustion of tribal court remedies, moreover, will encourage tribal courts to explain to the parties the precise basis for accepting jurisdiction, and will also provide other courts with the benefit of their expertise in such matters in the event of further judicial review.
h — I I — I I — I
Our conclusions that § 1331 encompasses the federal question whether a tribal court has exceeded the lawful limits of its jurisdiction, and that exhaustion is required before such a claim may be entertained by a federal court, require that we reverse the judgment of the Court of Appeals. Until petitioners have exhausted the remedies available to them in the Tribal Court system, n. 4, supra, it would be premature for a federal court to consider any relief. Whether the federal action should be dismissed, or merely held in abeyance pending the development of further Tribal Court proceedings, is a question that should be addressed in the first instance by the District Court. Accordingly, 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.
Record, Doc. No. 6.
Record, Doc. No. 14. In their original complaint, petitioners relied on 25 U. S. C. § 1302 and on 28 U. S. C. § 1343 as bases for federal jurisdiction.
The Court of Appeals believed that the petitioners’ due process and equal protection claims had no merit because Indian tribes are not constrained by the provisions of the Fourteenth Amendment. Further, although recognizing that the Tribe is bound by the Indian Civil Rights Act, 25 U. S. C. § 1301 et seq., the Court of Appeals held that a federal court has no jurisdiction to enjoin violations of that Act. See Santa Clara Pueblo v. Martinez, 436 U. S. 49 (1978). Finally, although the majority assumed that a complaint alleging that a tribe had abused its regulatory jurisdiction would state a claim arising under federal common law, it concluded that a claim that a tribe had abused its adjudicatory jurisdiction could not be recognized because Congress, by enacting the Indian Civil Rights Act, had specifically restricted federal court interference with tribal court proceedings to review on petition for habeas corpus.
After the District Court’s injunction was vacated, tribal officials issued a writ of execution on August 1, 1984, and seized computer terminals, other computer equipment, and a truck from the School District. A sale of the property was scheduled for August 22, 1984. On that date, the School District appeared in the Tribal Court, attempting to enjoin the sale and to set aside the default judgment. App. to Brief in Opposition 1a-9a. The Tribal Court stated that it could not address the default-judgment issue “without a full hearing, research, and briefs by counsel,” id., at 4a; that it would consider a proper motion to set aside the default judgment; and that the sale should be postponed. Petitioners also proceeded before the Court of Appeals, which denied an emergency motion to recall the mandate on August 20, 1984. The next day Justice Rehnquist granted the petitioners’ application for a temporary stay. On September 10, 1984, he continued the stay pending disposition of the petitioners’ petition for certiorari. 469 U. S. 1032 (1984). On September 19, the Tribal Court entered an order postponing a ruling on the motion to set aside the default judgment until after final review by this Court. App. to Brief in Opposition 15a. Subsequently, the Court of Appeals stayed all proceedings in the District Court. On April 24, 1985, Justice Rehnquist denied an application to “dissolve” the Court of Appeals’ stay. Post, p. 1301.
28 U. S. C. §1331.
Illinois v. City of Milwaukee, 406 U. S. 91, 100 (1972).
See Romero v. International Terminal Operating Co., 358 U. S. 354, 392-393 (1959) (opinion of Brennan, J.); cf. County of Oneida v. Oneida Indian Nation, 470 U. S. 226, 235-236 (1985); Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 640 (1981); United States v. Little Lake Misere Land Co., 412 U. S. 580, 592-593 (1973); Erie R. Co. v. Tompkins, 304 U. S. 64, 78-79 (1938).
American Well Works Co. v. Layne and Bowler Co., 241 U. S. 257, 260 (1916).
See, e. g., United States v. Wheeler, 435 U. S. 313, 323 (1978); United States v. Mazurie, 419 U. S. 544, 557 (1975); cf. Turner v. United States, 248 U. S. 354, 354-355 (1919).
Escondido Mutual Water Co. v. La Jolla Bands of Mission Indians, 466 U. S. 765, 788, n. 30 (1984) (“[A]ll aspects of Indian sovereignty are subject to defeasance by Congress”); Rice v. Rehner, 463 U. S. 713, 719 (1983); White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 143 (1980); United States v. Wheeler, 435 U. S., at 323.
White Mountain Apache Tribe v. Bracker, 448 U. S., at 142; Santa Clara Pueblo v. Martinez, 436 U. S., at 55-56.
Thus, in recent years we have decided whether a tribe has the power to regulate the sale of liquor on a reservation, Rice v. Rehner, supra; the power to impose a severance tax on oil and gas production by non-Indian lessees, Merrion v. Jicarilia Apache Tribe, 455 U. S. 130 (1982); the power to regulate hunting and fishing, Montana v. United States, 450 U. S. 544 (1981), Puyallup Tribe v. Washington Dept. of Game, 433 U. S. 165 (1977); and the power to tax the sale of cigarettes to non-Indians, Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134 (1980).
See, e. g., Mescalero Apache Tribe v. Jones, 411 U. S. 145 (1973); cf. White Mountain Apache Tribe v. Bracker, supra.
We have recognized that federal law has sometimes diminished the inherent power of Indian tribes in significant ways. As we stated in United States v. Wheeler, 435 U. S., at 323-326: 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 [435 U. S. 191 (1978)].”
We stated:
“Faced by attempts of the Chocktaw Tribe to try non-Indian offenders in the early 1800’s the United States Attorneys General also concluded that the Choctaws did not have criminal jurisdiction over non-Indians absent congressional authority. See 2 Op. Atty. Gen. 693 (1834); 7 Op. Atty. Gen. 174 (1855). According to the Attorney General in 1834, tribal criminal jurisdiction over non-Indians is, inter alia, inconsistent with treaty provisions recognizing the sovereignty of the United States over the territory assigned to the Indian nation and the dependence of the Indians on the United States.” 435 U. S., at 198-199.
F. Cohen, Handbook of Federal Indian Law 253 (1982) (“The development of principles governing civil jurisdiction in Indian Country has been markedly different from the development of rules dealing with criminal jurisdiction”).
A leading treatise on Indian law suggests strongly that Congress has had a similar understanding:
“In the civil field, however, Congress has never enacted general legislation to supply a federal or state forum for disputes between Indians and non-Indians in Indian country. Furthermore, although treaties between the federal government and Indian tribes sometimes required tribes to surrender non-Indian criminal offenders to state or federal authorities, Indian treaties did not contain provision for tribal relinquishment of civil jurisdiction over non-Indians.” Id., at 253-254.
Cf. Kennerly v. District Court of Montana, 400 U. S. 423 (1971); Williams v. Lee, 358 U. S. 217 (1959).
See, e. g., New Mexico v. Mescalero Apache Tribe, 462 U. S. 324, 331-332 (1983); Merrion v. Jicarilla Apache Tribe, 455 U. S., at 137; Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S., at 152.
New Mexico v. Mescalero Apache Tribe, 462 U. S., at 332; Merrion v. Jicarilla Apache Tribe, 455 U. S., at 138, n. 5; White Mountain Apache Tribe v. Bracker, 448 U. S., at 143-144, and n. 10; Morton v. Mancari, 417 U. S. 535, 551 (1974); Williams v. Lee, 358 U. S., at 223.
We do not suggest that exhaustion would be required where an assertion of tribal jurisdiction “is motivated by a desire to harass or is conducted in bad faith,” cf. Juidice v. Vail, 430 U. S. 327, 338 (1977), or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court’s jurisdiction.
Four days after receiving notice of the default judgment, petitioners requested that the District Court enter an injunction. Crow Tribal Court Rule of Civil Procedure 17(d) provides that a party in a default may move to set aside the default judgment at any time within 30 days. App. 17. Petitioners did not utilize this legal remedy. It is a fundamental principle of long standing that a request for an injunction will not be granted as long as an adequate remedy at law is available. See, e. g., Rondeau v. Mosinee Paper Corp., 422 U. S. 49, 57 (1975); Sampson v. Murray, 415 U. S. 61, 88 (1974).
C. Wright, Handbook of the Law of Federal Courts § 16 (1976).
Cf. Weinberger v. Salfi, 422 U. S. 749, 765 (1975).
Ibid.; see, e. g., North Dakota ex rel. Wefald v. Kelly, 10 Indian L. Rep. 6059 (1983); Crow Creek Sioux Tribe v. Buum, 10 Indian L. Rep. 6031 (1983).
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_procedur
|
C
|
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. Glenda NEWSOME, Shawn Lee Rawls, Edwin Eugene Trout, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Kenneth BIRCHFIELD, James Anthony Angerami, Defendants-Appellants.
Nos. 91-8663, 91-8866.
United States Court of Appeals, Eleventh Circuit.
Aug. 31, 1993.
,-Thomas Spraley, Avondale Estates, GA, for Newsome.
C. Gordon Statham, Decatur, GA, for Rawls.
Stanley M. Baum, Bates & Baum, Atlanta, GA, for Trout.
David S. Lipscomb, Duluth, GA, for Birch-field.
John J. Lieb, Atlanta, GA, for Angerami.
Carolyn J. Adams, Asst. U.S. Atty., Atlanta, GA, for U.S.
Before BLACK and CARNES, Circuit Judges, and RONEY, Senior Circuit Judge.
CARNES, Circuit Judge:
Glenda Newsome, Shawn Lee Rawls, Edwin Eugene Trout, Kenneth Birchfield, and James Anthony Angerami appeal their convictions and sentences which resulted from their involvement in a conspiracy to manufacture and possess with,intent to distribute methamphetamine. Defendants raise a raft of issues, all but three of which warrant no discussion. The three issues that do warrant discussion are these: 1) the contention of Newsome, Trout, and Rawls that the district court erred in denying their motions for a mistrial based on alleged prejudice from questions the prosecutor asked; 2) the contention of all the defendants that the district court erred in calculating under U.S.S.G. § 2D 1.1 the amount of methamphetamine involved in the conspiracy; and 3) Angerami’s contention that the district court erred in sentencing him to the statutory ten year maximum term of imprisonment on the firearms possession charge, a term which Anger-ami argues exceeds the Guideline range for this offense.
In the final analysis, we vacate the sentences of Newsome, Rawls, and Trout, because the district court erred in treating as methamphetamine the gross weight of unusable sludge mixtures which contained only trace amounts of methamphetamine, and with these three defendants that error may have made a difference in the sentences. As to the other two defendants, it did not. We remand the cases of Newsome, Rawls, and Trout for resentencing in accordance with this opinion. We find no other error in the district court’s judgments.
I. BACKGROUND
In August of 1990, Wanda Palacio informed Drug Enforcement Administration agents that her recent acquisition of a large quantity of ephedrine in Puerto Rico was on behalf of defendants Angerami and Birch-fieid. According to Palacio, James Angera-mi, and Kenneth Birchfieid intended to use the ephedrine in the manufacture of methamphetamine. Palacio agreed to cooperate with the Government in its investigation.
The investigation led to the Atlanta area where Angerami and Birchfieid were businessmen. The Government recorded telephone calls between Palacio and Birchfieid during which the purchase of additional ephedrine was discussed. The Government also monitored the movements of Angerami and Birchfieid and was led to Gloria New-some, her common-law husband Edwin Trout, and Birehfield’s secretary, Shawn Rawls.
On September 25, 1990, Birchfieid was arrested shortly after leaving the residence of Newsome and Trout. After being advised of his rights, Birchfieid admitted that he had methamphetamine oil in his car and that he was going elsewhere to crystallize it. A container holding 4.12 kilograms of methamphetamine oil was recovered from the trunk of Birchfield’s car. According to the uhrebut-ted statement of the Government’s expert chemist, this volume of oil would have yielded 4.99 kilograms of methamphetamine. That 4.99 kilogram amount was included in the sentencing computations for all defendants.
On the same day Birchfieid was arrested, Angerami was arrested as he was leaving a convenience store. A small amount of a mixture of methamphetamine and cocaine was recovered from Angerami’s person and a loaded Smith & Wesson .357 revolver was found in-his ear. In a subsequent search of Angerami’s business pursuant to a warrant, agents found chemicals and apparatus for use in processing methamphetamine, as well as a bucket containing 3.08 kilograms of “whitish-yéllowish solid material” containing- trace amounts of methamphetamine. On the ground behind a structure on the premises, agents also found approximately 7.6 kilograms of a “brown sludge” containing trace amounts of methamphetamine. The 3.08 kilogram amount and the 7.6 kilogram amount were included as methamphetamine in the sentencing computations for all defendants.
The Government also executed a search warrant at Angerami’s residence where agents found an M14 rifle capable of automatic fire and ammunition for the weapon. Angerami was convicted on a separate count for possession of the unregistered machine gun'in violation of 26 U.S.C. § 5861(d).
One week into the trial of all five defendants, the district court granted Angerami and Birehfield’s motion for a mistrial, but denied the mistrial motions of the other three defendants. The motions were based on the risk of prejudice resulting from the Government’s questioning of Birchfieid about his association with an individual whom the Government erroneously stated had been convicted on drug trafficking charges. The trial of Newsome, Trout, and Rawls continued and concluded with their convictions. After the mistrial was declared as to them, Birchfieid and Angerami were retried together and convicted. All the cases were consolidated into this appeal.
The common count on which all five defendants were convicted is Count I, which alleged a conspiracy to manufacture and to possess with intent to distribute methamphetamine. See also n. 1, above. At the sentencing hearings of the defendants, the district court included the weights of the various substances we have described previously in its calculation of the total weight of methamphetamine for sentencing purposes. This led the court to conclude that the conspiracy involved at least ten kilograms of methamphetamine and that resulted in a base offense level of 36 under U.S.S.G. § 2D1.1(a)(3) and (e).
II. DISCUSSION
A. THE MOTIONS FOR MISTRIAL OF NEWSOME, RAWLS, AND TROUT
At the joint trial of all five defendants, the prosecutor cross-examined Birch-fieid about his relationship with a business associate, Bruce Hunt.
Q: And you also mentioned that~ you'd been in business with a Bruce Hunt, is that correct?
A: I was with a-with a deal with him in a-on an oil thing, on an oil lease deal.
Q: And how familiar are you with Bruce Hunt? How close to him are you?
A: I've known Bruce for several years. He came in my shop for several years.
Q: Were you aware that Mr. Hunt went to prison for drugs?
A: I knew that he got arFested several years ago, yes, ma'am.
Earlier in his direct testimony, Birchfield had stated that the "oil lease deal" was a partnership between Hunt, Angerami, Birch-field, and others. None of the, defendants in this case, except for Angerami and Birch-field, were mentioned as having been involved either in this "deal" or with Hunt in any other way.
There was no contemporaneous objection to this line of questioning. However, at the end of the trial day, Angerami moved for a mistrial, a motion subsequently joined by all of the other defendants. Two days later at the hearing on this motion, the prosecutor revealed that, in the interim, she had learned that Hunt had in fact never been convicted. Holding that the questioning had been improper, the court declared a mistrial for An-gerami and Birchfield:
There is no doubt as to the impropriety of the evidence. I think it's very clear as to Mr. Birchfleld; that is, because he was the one that was asked about it. It's less clear in my judgment, the connection with the jury as to Mr. Angerami, but it's there because Mr. Hunt at least was one of the persons with whom they were all-there was testimony they were business partners.
However, the court denied the motion as to the other three defendants, because the court found that "there's been no testimony from anybody that any of the other three defendants have any connection whatsoever or have had any connection whatsoever with Mr. Hunt." Newsome, Rawls, and Trout contend that it was error for the district court not to grant a mistrial as to them.
The former Fifth Circuit passed on to us "the long established rule that a defendant's guilt may not be proven by showing he associates with unsavory characters." United States v. Singleterry, 646 F.2d 1014, 1018 (5th Cir. Unit A June 1981), cert. denied, 459 U.S. 1021, 103 S.Ct. 387, 74 L.Ed.2d 518 (1982); see also United States v. Ochoa, 609 F.2d 198, 204-06 (5th Cir.1980). However, "[t]he decision whether to grant a mistrial is within the sound discretion of the trial court and will not be reversed unless the record reflects that the court abused that discretion." United States v. Saldarriaga, 987 F.2d 1526, 1531 (11th Cir.1993).
We find that the district court was correct in concluding that no evidence linked New-some, Rawls, or Trout with Bruce Hunt. Indeed, Newsome concedes in her brief that "no evidence connected Newsome with Mr. Hunt." The prosecutor's reference to Hunt was confined to the above-quoted colloquy. The intervening testimony between this colloquy and the declaration of a mistrial was limited to the conclusion of Birchfleld's cross-examination and the voir dire of the defense's expert, Dir. James Woodford. The subject of the "oil lease deal" involving Hunt was not revisited during the intervening testimony or at any other time.
We conclude that the rights of Newsome, Rawls, and Trout were unaffected by the Government's questions regarding Bruce Hunt. The district court's denial of their motions for mistrial was not an abuse of discretion.
B. WEIGHT OF METHAMPHETAMINE IN COMPUTING THE BASE OFFENSE LEVEL
1. Introduction
The defendants contend that the district court erred in including the weight of three unusable "mixture[s] or substance[s]" seized following the arrests in this case: 1) the 4.12 kilograms of methamphetamine oil (which the court included as 4.99 kilograms of methamphetamine) that were discovered in the trunk of Birchfield’s car; 2) the 3.08 kilograms ' of “sludge” containing trace amounts of methamphetamine that were seized in a building at Angerami’s business; and 3) the 7.6 kilograms of “sludge” containing trace amounts of methamphetamine that were discovered on the ground behind a structure on the premises of Angerami’s business. According to the defendants, the district court’s action was prohibited by controlling authority of this Court.
Chapter Two, Part D of the Sentencing Guidelines represents the Sentencing Commission’s effort to craft a comprehensive scheme for sentencing defendants convicted of offenses involving drugs. This appeal requires us to consider the following explanatory note to the Drug Quantity Table found in U.S.S.G. § 2D1.1(c): “Unless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance.”
The defendants’ contention presents a variation of an issue that we addressed in our decisions in United States v. Rolande-Gabriel, 938 F.2d 1231 (11th Cir.1991) and United States v. Bristol, 964 F.2d 1088 (11th Cir.1992). Specifically, we .must decide whether the rule we announced in Rolande-Gabriel, “that the term ‘mixture’ in U.S.S.G. § 2D1.1 does not include unusable mixtures,” Rolande-Gabriel, 938 F.2d at 1238, is equally applicable where the charge is conspiracy to possess and manufacture a controlled substance, and where the “mixture or substance” in question is either the controlled substance at a preliminary stage of production or a manufactured substance discarded as waste due to poor quality. This issue continues to plague courts because, although the commentary to § 2D1.1 instructs that “ ‘[m]ixture or substance’ as used in this guideline has the same meaning as in 21 U.S.C. § 841,” U.S.S.G. § 2D1.1, comment, (n. 1), neither that statute nor the Guidelines defines those words.
In Rolande-Gabriel, the district court had based the sentence of a defendant who pled guilty to a charge of importation of cocaine on 241.6 grams of liquid containing cocaine even though only 72 grams of the mixture were usable. Rejecting the “absurdity and irrationality” of this approach, we held “that the term ‘mixture’ in U.S.S.G. § 2D1.1 does not include unusable mixtures.” Rolande-Gabriel, 938 F.2d at 1238. In so holding, we distinguished the Supreme Court’s decision in Chapman v. United States, — U.S. -, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), which held that the combined weight of sheets of blotter paper impregnated with LSD should be used in calculating the defendants’ sentences:
While LSD is ready for sale, use, or consumption when it is placed on standard carrier mediums such as blotter paper, gel, or sugar cubes, the cocaine mixture in this case was obviously unusable while mixed with the liquid waste material.... The [Supreme] Court stated the inclusion of the weight of standard carrier mediums is rational because standard carrier mediums facilitate the use, marketing and access of LSD and other drugs. The liquid waste in this case, however, did not accomplish any of these purposes. The inclusion of the carrier medium of unusable liquid waste in this case for sentencing is irrational.
Rolande-Gabriel, 938 F.2d at 1237 (citation omitted).
More recently, in United States v. Bristol, we held Rolande-Gabriel to be “binding authority” and “dispositive” of the issue of whether the total weight of cocaine-laden wine that defendants were attempting to import into the United States from Panama should be considered for sentencing purposes. The total weight of the wine-cocaine mixture was 10.705 kilograms from which 4.095 kilograms of cocaine were extracted. The Bristol panel, after noting a split among the circuits that have interpreted the Chapman decision, recognized that it was bound by Rolande-Gabriel and held that the sentencing court “should not have included the weight of the wine.” 964 F.2d at 1090.
The Government insists that Rolande-Gabriel and Bristol are inapposite because the present ease involves a conspiracy to manufacture a controlled substance. According to the Government, the defendants should be charged with “the entire weight of any mixture or substance containing a detectable amount of controlled substance,” U.S.S.G. § 2D1.1(e), n. *, regardless of whether the “mixture[s] or substance[s]” were the finished product, or were goods in progress at an intermediate stage of production, or were merely waste product discarded for its demonstrably poor quality.
It is well-established that “[t]he determination of the quantity of drugs involved in a conspiracy for the purpose of sentencing is a factual determination subject to the clearly erroneous standard.” United States v. Davis, 902 F.2d 860, 861 (11th Cir.1990); see also United States v. Griffin, 945 F.2d 378, 383 (11th Cir.1991) (same), cert. denied, — U.S. -, 112 S.Ct. 1958, 118 L.Ed.2d 561 (1992). The same standard applies to review of a district court’s estimate of the production capability or capacity of a drug operation. United States v. Bertrand, 926 F.2d 838, 846 (9th Cir.1991). However, “[w]e review de novo the district court’s legal interpretation of the Sentencing Guidelines.” United States v. Perez, 992 F.2d 295, 296 (11th Cir.1993); see also United States v. Rodriguez, 975 F.2d 999, 1004 (3d Cir.1992) (“The question of whether the combination of cocaine and- boric acid constituted a ‘mixture or substance’ under section 2D1.1 of the Sentencing Guidelines is a legal question over which we exercise plenary review.”).
2. The 4.12 Kilograms of Methamphetamine Oil Found in Birchfield’s Automobile
Turning first to the methamphetamine oil found in the trunk of Birehfield’s ear, we find no error in the district court’s inclusion of 4.99 kilograms which represented the projected yield of the 4.12 kilograms of oil that was discovered. We recently noted that because “the objects of attempts and conspiracies often remain unconsummated at the time of arrest, the United States Sentencing Commission instructs sentencing courts to ‘approximate the quantity of the controlled substance’ that ‘reflect[s] the scale of the offense.’ ” United States v. Hyde, 977 F.2d 1436, 1440 (11th Cir.1992) (quoting U.S.S.G. § 2D1.4, comment. (n. 2)), cert. denied, — U.S. -, 113 S.Ct. 1948, 123 L.Ed.2d 653 (1993). In Hyde, we approved the district court’s finding that 110 pounds of phenylacetic acid, a precursor chemical for methamphetamine, could be processed into 30 kilograms of methamphetamine. Id. Other courts of appeals have adopted the same approach. See, e.g., United States v. Beshore, 961 F.2d 1380, 1383 (8th Cir.) (“Calculation of amount of methamphetamine that could have been produced from the quantity of precursor chemicals is proper under the sentencing guidelines.”), cert. denied, — U.S. -, 113 S.Ct. 243, 121 L.Ed.2d 175, and cert. denied, — U.S. -, 113 S.Ct. 243, 121 L.Ed.2d 177 (1992); United States v. Havens, 910 F.2d 703, 705 (10th Cir.1990) (“[T]he trial court, upon proper testimony, may estimate the ultimate quantity of pro-duceable drugs. This estimate should be equal to the amount of drugs produceable if the precursor chemicals possessed by the defendants were combined with proportionate amounts of the missing ingredients including processing equipment.”), cert. denied, 498 U.S. 1030, 111 S.Ct. 687, 112 L.Ed.2d 678 (1991).
We see no principled distinction for sentencing purposes between “precursor chemicals” destined for conversion into a controlled substance and combinations of those chemicals that have been partially processed and are closer to the finished product at the time they are discovered. We further note that none of the defendants offered any evidence to rebut the preliminary finding contained in the Presentence Reports that, based on information provided by a DEA chemist, “the net weight' of the methamphetamine oil was 9.09 pounds [4.12 kilograms], and that after the oil had been properly dried it would have produced 11 pounds [4.99 kilograms] of methamphetamine hydrochloride.” Thus, the district court’s adoption of this preliminary finding was not clearly erroneous. See United States v. Wise, 881 F.2d 970, 972-73 (11th Cir.1989).
3. The 3.08 and 7.6 Kilograms of “Sludge” Found at Angerami’s Business
The “mixture[s] or substance[s]” seized in the search of Angerami’s business present a different question from the methamphetamine oil found in Birchfield’s car. There is no suggestion that the 3.08 and 7.6 kilogram quantities found at the business were goods in progress that would have eventually become some amount of marketable methamphetamine. On the contrary, the district court found that these mixtures had been manufactured by the conspirators but had been “poured out or whatever” due to the mixtures’ poor quality. The Government’s chemist testified at trial that these mixtures were not only unusable, but also toxic. Notwithstanding this testimony, and the fact that the mixtures contained less than one percent methamphetamine, the district court included the total weights of these mixtures because it found that “had [the defendants] been more proficient in their manufacturing process [there] would I guess have been methamphetamine on the market.”
Whether discarded materials from a conspiracy’s drug manufacturing process should be counted for sentencing purposes is an issue of first impression in this Circuit. The one court of appeals that has squarely addressed this question concluded that the entire weight of a “liquid [that] was probably a waste product left over from the methamphetamine manufacturing process” should be counted- for sentencing. United States v. Walker, 960 F.2d 409, 412 (5th Cir.), cert. denied, - U.S. -, 113 S.Ct. 443, 121 L.Ed.2d 362 (1992). The Walker court found support for its conclusion in Fifth Circuit precedent as well as the Supreme Court’s decision in Chapman, but conceded that Chapman “did not speak to the issue of whether the weight of liquid waste containing methamphetamine should serve as a basis for computing a defendant’s offense level.” Id. If Walker were an Eleventh Circuit decision, it might compel affirmance of the district court’s action in this case. . But Walker, unlike Rolande-Gabriel, is not a decision we are required to follow.
The district court adopted the conclusion of the probation officer who attempted to distinguish Rolande-Gabriel by observing that “the yellow sludge is not a combination of methamphetamine and an unusable carrier medium; the yellow sludge is the product of an attempt to manufacture methamphetamine.” In Rolande-Gabriel, however, our focus was on the rationality of sentencing drug defendants based on unusable waste materials. As we explained, “it is fundamentally absurd to give an individual a more severe sentence for a mixture which is unusable and not ready for retail or wholesale distribution while persons with usable mixtures would receive far less severe sentences.” Rolande-Gabriel, 938 F.2d at 1237. Likewise, it makes no sense to sentence these defendants based on the weights of materials that would never find their way to methamphetamine consumers.
As with the methamphetamine oil, the district court was required to “approximate the quantity of the controlled substance” if it found that “the amount Seized d[id] not reflect the scale of the offense.” U.S.S.G. § 2D1.1, comment, (n. 12). But there is no indication in the record that this was the court’s intent with respect to the two substances found at Angerami’s business. On remand, if the district court chooses to pursue the approximation approach, it should enter findings of fact to support -its determination. The court may consider, but is not limited to, those factors identified in the commentary to § 2D1.1 which may be relevant in this case: “the price generally obtained for the controlled substance, financial or other records, similar transactions in controlled substances by the defendant, and the size or capability of any laboratory involved.” Id.
Because the sludge substances in this case were unusable, we find that the rationale of Rolande-Gabriel controls the disposition of this issue — the gross weight of “unusable mixtures” should not be equated with the weight of a controlled substance for sentencing purposes. We conclude the district court’s inclusion of the total weight of the two substances found at Angerami’s business was clear error. We therefore vacate the sentences of Newsome, Rawls, and Trout and remand for resentencing. While inclusion of these weights in the sentence calculations of Birchfield and Angerami was also improper, that error does not require that we remand their two cases for resentencing. Birchfield and Angerami were each held responsible for 28.76 kilograms of methamphetamine. Elimination of the 3.08 and 7.6 kilogram quantities in question from the sentencing equation still would have left these defendants accountable for a quantity of methamphetamine equal to or greater than 10 kilograms but less than 30 kilograms, with the same resulting base offense level of 36. Because their base offense levels are unaffected by our holding, and because both Birchfield and Angerami were sentenced to the lowest possible terms of imprisonment based on their offense levels and criminal history categories, we need not remand. See, e.g., Williams v. United States, — U.S. -, -, 112 S.Ct. 1112, 1121, 117 L.Ed.2d 341 (1992) (“If the party defending the sentence persuades the court of appeals, that the district court would have imposed the same sentence absent the erroneous factor, then a remand is not required....”).
C. ANGERAMI’S 120-MONTH SENTENCE ON THE FIREARM POSSESSION CHARGE
In addition to sentencing Angerami to 292 months of incarceration on the drug conspiracy conviction, the district court also sentenced him to a concurrent 120-month term of imprisonment for the firearm possession conviction. That ten year sentence is the statutory maximum for this offense under 26 U.S.C. § 5871. Angerami argues for the first time on appeal that the district court erred in sentencing him to the statutory maximum term of imprisonment on this charge because that ten year term 'far exceeds the- Guideline range for this offense. The Government correctly responds that Angerami waived his appeal of this sentence.
After the firearm possession, sentence was imposed, Angerami was given the opportunity to object but failed to do so. See United States v. Jones, 899 F.2d 1097, 1103 (11th Cir.) (“Where the district court has offered the opportunity to object and a party is silent or fails-to state the grounds for objection, objections to the sentence will be waived for purposes of appeal....”), cert. denied, 498 U.S. 906,. 111 S.Ct. 275, 112 L.Ed.2d 230 (1990), overruled on other grounds by United States v. Morrill, 984 F.2d 1136 (11th Cir.1993) (en banc). Angerami now argues that review of his sentence is not precluded under Jones because he contends that the sentence imposed was manifestly unjust. This Court has equated the manifest injustice inquiry with review under the plain error doctrine. United States v. Neely, 979 F.2d 1522, 1523 (11th Cir.1992) (“We will only consider [sentence] objections raised for the first time on appeal under the plain error doctrine to avoid ‘manifest' injustice.’ ”). ' Because we find no error in the sentence imposed by the district court, there can be no plain error.
Angerami’s argument is based on the incorrect assumption that multiple-count sentencing is conducted in the same manner as single-count sentencing. That assumption overlooks extensive Guidelines provisions devoted to sentencing on multiple counts. See U.S.S.G. Ch. 3, Pt. D; U.S.S.G. Ch. 5, Pt. G. Under these provisions, the sentencing court must first “determin[e] a single offense level that encompasses all the counts of which the defendant is convicted.” U.S.S.G. Ch. 3, Pt. D, intro, comment. The court then must “determin[e] the specific sentence to be formally imposed on each count in a multiple-count ease.” U.S.S.G. § 5G1.2, comment. If “one of the counts will have a statutory maximum adequate to permit imposition of the total punishment as the sentence on that countf,] [t]he sentence on each of the other counts will then be set at the lesser of the total punishment and the applicable statutory maximum, and be made to run concurrently with all or part of the longest sentence.” Id.
The district court adopted a total adjusted offense level of 40 for the conspiracy count based on the following: a base offense level of 36, plus a 2-level increase for possession of a dangerous weapon (U.S.S.G. § 2D1.1(b)(1)), and a 2-level enhancement for obstruction of justice (U.S.S.G. § 3C1.1). The court also adopted a total adjusted offense level of 18 for the firearm possession charge based on a base offense level of 16 and a 2-level enhancement for obstruction of justice (U.S.S.G. § 3C1.1). Applying the multiple count aggregation rules of Guidelines Chapter 3, Part D, the court found a total combined adjusted offense level of 40. With a criminal history category of I, this yielded a Guideline range of 292-365 months. The court then imposed a sentence of 292 months imprisonment on Angerami.
This is not the end of the story, however, because the court was required to specify the “sentence to be formally imposed on each count in a multi-count case.” U.S.S.G. § 5G1.2, comment. This requires application of § 5G1.2 which provides as follows:
(a) The sentence to be imposed on a count for which the statute mandates a consecutive sentence shall be determined and imposed independently.
(b) Except as otherwise required by law (see § 5Gl.l(a), (b)), the sentence imposed on each other count shall be the total punishment as determined in accordance with Part D of Chapter Three, and Part C of this Chapter.
(c) If the sentence imposed on the count carrying the highest statutory maximum is adequate to achieve the total punishment, then the sentences on all counts shall run concurrently, except to the extent otherwise required by law.
(d) If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment. In all other respects sentences on all counts shall run concurrently, except to the extent otherwise required by law.
Helpful to the proper application of this section is the following commentary:
The combined length of the sentences (“total punishment”) is determined by the adjusted combined offense level. To the extent possible, the total punishment is to be imposed on each count. Sentences on all counts run concurrently, except as required to achieve the total sentence, or as required by law.
Usually, at least one of the counts will have a statutory maximum adequate to permit imposition of the total punishment as the sentence on that count. The sentence on each of the other counts will then be set at the lesser of the total punishment and the applicable statutory maximum, and be made to run concurrently with all or part of the longest sentence.
U.S.S.G. § 5G1.2, comment. We have explained that this “commentary to the section describes exactly what to do in [a] situation, where ‘one of the counts [has] a statutory maximum adequate to permit imposition of the total punishment as the sentence on that count.’ ” United States v. Woodard, 938 F.2d 1255, 1257 (11th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1210, 117 L.Ed.2d 449 (1992). The district court in this case followed this Guideline and commentary to the letter.
Angerami’s “total punishment,” as determined by his adjusted combined offense level, is 292 months. “To the extent possible,” this sentence should have been imposed on both Count I and Count VIII. U.S.S.G. § 5G1.2 comment. It was not possible, however, because of the statutory maximum of ten years for the firearm possession charge in Count VIII. See 26 U.S.C. § 5871. Therefore, the district court properly set the sentence on Count VIII at “the lesser of the total punishment and the applicable statutory maximum” — ten years. U.S.S.G. § 5G1.2 comment. Because the conspiracy count had “a statutory maximum adequate to permit imposition of the total punishment as the sentence on that count,” the court correctly ordered the 120-month sentence imposed on the firearms possession count to run concurrently with the 292-month sentence imposed on the conspiracy count. Id.; see, e.g., United States v. Analla, 975 F.2d 119, 127-28 (4th Cir.1992) (In sentencing on the counts of murder, assault, robbery, and use of a firearm in a felony, “[t]he district court ... did not err in imposing concurrent sentences [with the life sentence for murder] of the statutory maximum for the robbery count and the assault count.”), cert. denied, — U.S. -, 113 S.Ct. 1853, 123 L.Ed.2d 476 (1993).
We do not mean to imply that plain error exists whenever there is error; that is not what “plain error” means. See, e.g., United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir. Unit B 1981) (“An error is plain if it is ‘so obvious that the failure to notice it would seriously affect the fairness, integrity, or public reputation of judicial proceedings.’ ”). The converse is true, however. Where there is no error, there can be no plain error. The district court applied the applicable Guidelines precisely as written. Thus, the sentence imposed on Angerami for the firearms possession conviction is not in error, plain or otherwise. It is due to be affirmed.
III. CONCLUSION
We AFFIRM the convictions of all defendants. We VACATE the sentences imposed on appellants Newsome, Rawls, and Trout under Count I of the indictment and REMAND for resentencing consistent with this opinion. In all other respects, the judgments of and sentences imposed by the district court are AFFIRMED.
. All defendants were .convicted on Count I of an eight-count indictment which alleged a conspiracy to manufacture and to possess with intent to distribute methamphetamine in violation of 21 U.S.C. .§ 846. Defendants Newsome, Rawls, Trout, and Birchfield were also convicted on Count II, manufacturing methamphetamine in violation of 21 U.S.C. § 841, and Count III, possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841. Birchfield also was convicted on Count VII, disposal of hazardous waste without a permit in violation of 42 U.S.C. § 6928(d)(2)(A). Angerami was also convicted on Count VIII, possession of an unregistered, machine gun in violation of 26 U.S.C. § 5861(d).
. Angerami argues that the Government’s expert testified that only seven pounds (3.18 kilograms) of methamphetamine oil were seized. However, this testimony was only referring to Government Exhibit 76. The Government's expert testified earlier that the oil seized from Birchfield’s car was divided into Exhibits 76 and 198 “for court purposes.” As the Presentence Reports make clear, the gross weight of the container found in Birchfield’s car was 13.2 kilograms. The net weight of the methamphetamine oil was 4.12 kilograms from which 4.99 kilograms of methamphetamine hydrochloride could be produced.
. See generally Richard Belfiore, Annotation, Under What Circumstances Should Total Weight of Mixture or Substance in Which Detectable Amount of Controlled Substance Is Incorporated Be Used in Assessing Sentence Under United States Sentencing Guideline § 2D1.1 — Post-Chapman Cases, 113 A.L.R. Fed. 91 (1993).
. The quoted portions of this Guideline commentary are now found at U.S.S.G. § 2D1.1, comment. n. 12. See U.S.S.G. App. C, amend. 447 (November 1, 1992).
. Although the district court failed to explain the Guidelines basis for the sentence on the firearm conviction, “the court's summary-disposition ... has not precluded meaningful appellate review.” United States v. Wise, 881 F.2d 970, 973 (11th Cir.1989); see also United States v. Villarino, 930 F.2d 1527, 1528-29 (11th Cir.1991) (same).
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_direct1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Dennis PERSINGER, Plaintiff-Appellant, v. NORFOLK & WESTERN RAILWAY COMPANY, Defendant-Appellee.
No. 89-2223.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 1, 1990.
Decided Dec. 10, 1990.
Michael B. Michelson, Gaines & Stern Co., Cleveland, Ohio (Michael J. Rogan, Gaines & Stern Co., Cleveland, Ohio, Dennis P. Brumberg, Lutins & Shapiro, Roanoke, Va., on the brief), for plaintiff-appellant.
William Beverly Poff, Woods, Rogers & Hazlegrove, Roanoke, Va. (Kevin P. Oddo, Thomas A. Leggette, Woods, Rogers & Hazlegrove, Roanoke, Va., on the brief), for defendant-appellee.
Before ERVIN, Chief Judge, CHAPMAN, Circuit Judge, and MERHIGE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
CHAPMAN, Circuit Judge:
Plaintiff-appellant Dennis Persinger (“Persinger”) sued his former employer, defendant-appellee Norfolk & Western Railway Company (“Norfolk & Western”), for violations of the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60 (1988), in the District Court for the Western District of Virginia. After a four-day trial, the jury returned a verdict for Per-singer in the amount of $250,000. Norfolk & Western then moved for a judgment notwithstanding the verdict (“JNOV”) or, in the alternative, a new trial. Chief District Judge James C. Turk granted Norfolk & Western’s motion for a new trial on the ground that certain expert testimony was improperly admitted. Judge Turk also granted Norfolk & Western’s motion for JNOV on the ground there was no evidence of negligence after Persinger’s expert’s testimony was excluded. Persinger asks this court to reverse the JNOV, and reinstate the original jury verdict of $250,000. After considering the record, the briefs, and oral arguments, we find that the district judge acted within his discretion to exclude the expert testimony after having originally admitted it. However, his decision to exclude the testimony after the trial could have prejudiced Persinger, who relied on that testimony in presenting his case. Accordingly, we vacate the district court’s JNOV order, but affirm its decision to grant a new trial.
I.
This case arose from an injury Persinger sustained while an employee of Norfolk & Western when he installed a 75-pound starter motor in one of Norfolk & Western’s diesel locomotives.
There are two starter motors in each locomotive. The motors are removed manually by two electricians, one of whom loosens the nuts which hold the motor to the engine, while the other actually removes the motors. Once the motors are removed, the electricians change places for the installation of the new motors. To install a motor, two men lift the motor onto the running board of the locomotive. One worker then sits on the running board with his legs extended into the engine well and places the starter motor into the locomotive engine area. At this time, the other electrician attaches the motor. This job had been performed in the same manner for at least 20 years at Norfolk & Western. Every Norfolk & Western electrician performed this job, and Persinger had changed starters on many prior occasions.
When plaintiff was injured on January 28, 1985, he was working with a fellow electrician and following the installation procedure described. Plaintiff lifted the first motor into place, and the other electrician secured it. While installing the second motor, plaintiff experienced some discomfort on the top part of his shoulder which was later diagnosed as a bulging cervical disc. Persinger returned to work for a few months after his injury, but has not worked at Norfolk & Western since 1985. Persinger, however, has been working full time for another employer since 1986.
The case was tried before a jury on August 22 through 25, 1989. During trial, Norfolk & Western attempted to exclude the expert testimony of Dr. Carl Kroemer, a human factors analyst. The trial court expressed “great doubts” about the admissibility of Dr. Kroemer’s testimony, but allowed him to testify. After the testimony, Norfolk & Western again moved to strike. The district judge denied the request, but stated:
I don’t think it ought to have come in. I have let it in and I am not going to strike it at this time. I am going to leave it in, but I have great doubts about it qualifying as any expert testimony.
Norfolk & Western’s motions for a directed verdict were also denied. The jury then returned a verdict for Persinger for $250,-000, specifically finding that Norfolk & Western’s negligence caused Persinger’s injuries. Norfolk & Western then moved for JNOV or, in the alternative, for a new trial. The district judge found that Kroemer’s testimony was improperly admitted. Accordingly, he granted Norfolk & Western’s motion for JNOV, because other than Kroemer’s testimony, Persinger had failed to provide any evidence of negligence. Since the district judge determined that the evidence was improperly admitted, he also conditionally granted a new trial pursuant to Federal Rule of Civil Procedure 50(c)(1).
II.
This court reviews a district court’s evidentiary and procedural rulings for an abuse of discretion. The question of whether expert testimony is admissible is within the sound discretion of the trial judge, and appellate courts normally defer to the trial judge’s decision. See Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1055 (4th Cir.1986). Although this court will only reverse a district court’s decision to grant a new trial for an abuse of discretion, see Wilhelm v. Blue Bell, Inc., 773 F.2d 1429 (4th Cir.1985), in reviewing a trial court’s grant of JNOV, we must view the evidence in the light most favorable to the plaintiff in deciding if he has established his case. However, “the weight of the evidence under ... [FELA] must be more than a scintilla before the case may be properly left to the discretion of the trier of fact....” Brady v. Southern Ry., 320 U.S. 476, 479, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943).
III.
This appeal raises three issues: (1) whether the district judge erred in concluding that certain expert testimony should have been excluded at trial; (2) whether the district judge erred in granting Norfolk & Western’s motion for JNOV; and (3) whether the district judge erred in conditionally granting Norfolk & Western's motion for a new trial.
A. Admission of Expert Evidence
Federal Rule of Evidence 702 authorizes the admission of expert testimony that “will assist the trier of fact to understand the evidence or to determine a fact in issue_” Fed.R.Evid. 702. Although expert testimony is generally presumed helpful to the jury, we have held that Rule 702 excludes expert testimony on matters within the common knowledge of jurors. Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1055 (4th Cir.1986). Other courts have interpreted Rule 702 similarly. See, e.g., Andrews v. Metro North Commuter Ry., 882 F.2d 705, 708 (2d Cir.1989); Morgan v. District of Columbia, 824 F.2d 1049, 1061-62 (D.C.Cir.1987); Ellis v. Miller Oil Purchasing Co., 738 F.2d 269, 270 (8th Cir. 1984).
The district judge concluded that he erred in initially admitting Kroemer's testimony:
[T]he question of whether a given amount of weight is safe to lift is within the common knowledge of jurors as ordinary laymen. Once the jury was told how plaintiff performed his job and how much weight he was required to lift, the question of whether such weight was unreasonable was within the common sense and everyday knowledge of the jurors. As a result, it was improper to admit expert testimony on that question because such testimony could not have been of assistance to the trier of fact. Dr. Kroemer’s testimony should have been excluded because it was superfluous to the issue of whether the weight plaintiff had to lift to perform his job was unreasonable.
Persinger argues that Kroemer’s testimony was not superfluous since he was the only witness who could explain technical safety manuals, industry guidelines, and government safety regulations. These guidelines contained charts and tables establishing the maximum weights that could safely be lifted by an individual. Persinger contends that Kroemer’s testimony regarding the application of the equations contained within the standards was crucial to an understanding of this technical information by the jury.
When stripped of its technical gloss, however, Dr. Kroemer’s testimony did no more than state the obvious. He testified that he applied an industry safety formula to determine the weight that Persinger could safely lift. The formula, however, was based on several basic variables including the distance of the lift, and the distance from the body at which the weight was held. The typical juror knows that it is more difficult to lift objects from a seated position, especially when the lift is away from the body rather than close to the body. In fact, even Dr. Kroemer admitted that the industry formula represented a “commonly expressed” principle. Accordingly, we cannot say that the district judge abused his discretion in finding that the evidence should not have been admitted, especially given his previously expressed doubts. See Peters v. Five Star Marine Serv., 898 F.2d 448, 449-50 (5th Cir.1990) (affirming district judge’s decision to exclude expert testimony regarding the hazards of offloading a vessel being rocked by four to five foot waves). We therefore affirm that part of the district judge’s order excluding Dr. Kroemer’s testimony.
B. Decision to Grant Norfolk & Western’s Motion for JNOV
To recover under FELA, a plaintiff must prove by a preponderance of the evidence that the defendant was negligent. The district judge granted Norfolk & Western’s motion for JNOV after he concluded that Persinger had failed to present evidence of negligence. JNOY should not be granted unless the evidence is so clear that reasonable men could reach no other conclusion than the one suggested by the moving party. See Crinkley v. Holiday Inns, Inc., 844 F.2d 156, 160 (4th Cir.1988). This determination must be made while viewing the evidence in the light most favorable to support the jury verdict, Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 243 n. 14 (4th Cir.1982), yet more than a “mere scintilla” of evidence is necessary to defeat the motion. Gairola v. Virginia Dept. of General Servs., 753 F.2d 1281, 1285 (4th Cir.1985).
In this appeal, however, we do not have to evaluate the weight of the evidence to determine whether JNOV was appropriate. The district judge determined that, other than Kroemer’s testimony, Persinger had not presented any evidence of negligence. Therefore, he concluded that Norfolk & Western could not be liable for Persinger’s injury, making JNOV the appropriate remedy. The record in this case makes it clear that Persinger relied on Kroemer’s testimony, and that the district judge originally found this testimony to be evidence of negligence. Thus, there was no reason for Persinger to present other evidence of negligence. When the district judge excluded this evidence after the verdict and granted Norfolk & Western’s motion for JNOV, Persinger had no opportunity to present additional evidence of negligence, and he was clearly prejudiced. We find that fairness requires that Persinger have an opportunity to supply additional evidence of negligence. Accordingly, we hold that the district judge erred in granting Norfolk and Western’s motion for JNOV.
C. Decision to Grant a New Trial
In the event that the JNOV might be reversed on appeal, the district judge conditionally granted Norfolk & Western a new trial because of the improper admission of Kroemer’s testimony. Since we affirm the district judge’s evidentiary ruling, but reverse his decision to grant the JNOV, we find that Norfolk and Western is entitled to a new trial.
Persinger contends that Norfolk & Western is not entitled to a new trial, arguing that the admission of Kroemer’s testimony was harmless error. He argues that Norfolk & Western must prove that the error prejudicially affected its substantive rights. See Fed.R.Civ.P. 61 (evidentiary error not sufficient basis for new trial unless result is “inconsistent with substantial justice”). We have previously held, however, that the decision to grant a new trial “ ‘is a matter resting in the sound discretion of the trial judge, and ... his action thereon is not reviewable upon appeal, save in the most exceptional circumstances.’ ” Lindner v. Durham Hosiery Mills, Inc., 761 F.2d 162, 168 (4th Cir.1985) (quoting Aetna Cas. & Sur. v. Yeatts, 122 F.2d 350, 354 (4th Cir.1941)); Wilhelm v. Blue Bell, Inc., 773 F.2d 1429 (4th Cir.1985). Moreover, “[i]n harmless error analysis the beneficiary of the error ... [Persinger] has the burden to show that the error almost surely did not affect the outcome of the case.” Lusby v. T.G. & Y. Stores, Inc., 796 F.2d 1307, 1312 n. 4 (10th Cir.1986) (emphasis in original). We believe that Kroemer’s testimony had a direct effect on the jury, since Kroemer testified as to the ultimate issue of negligence, and we find that Persinger has not carried his burden of proving that Kroemer’s testimony did not affect the outcome of the ease. We hold that the district judge did not abuse his discretion in granting the motion for a new trial.
IV.
For the above reasons, we vacate the district court’s JNOV order, but affirm its decision to grant a new trial, and remand for proceedings consistent with this opinion.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR A NEW TRIAL.
. Fed.R.Civ.P. 50(c)(1) provides in part:
If the motion for judgment notwithstanding the verdict ... is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed.... In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered.
. Kroemer’s testimony could even be considered misleading, even though the district judge did not make any such findings. The formula used by Kroemer only applied to "lifts from the floor to knuckle height.” In this case, Persinger lifted the motor from a sitting position, not while standing.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_circuit
|
A
|
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.
Warren G. SCHWARTZ, Trustee, (by substitution) Respondent, Appellant, v. J. R. CIANCHETTE & SONS CORP., et al., Appellees.
No. 6159.
United States Court of Appeals First Circuit.
Heard May 4, 1966.
Decided June 28, 1966.
Julius Zizmor, New York City, with whom Schwartz & Duberstein, Brooklyn, N. Y., was on brief, for appellant.
Frederick G. Fisher, Jr., Boston, Mass., with whom Carl Hirsch and Hale & Dorr, Boston, Mass., were on brief, for appel-lees.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
McENTEE, Circuit Judge.
This appeal stems from the failure of one Joseph Halpern to complete the purchase of certain business property located in Bangor and Glenburn, Maine, which he agreed to buy from the appellees, J. R. Cianchette & Sons Corp. and Joseph R. Cianchette, debtors in possession under a Chapter XI arrangement. Three properties are involved in the sale — two in Bangor known as the Union Street and the North Bangor sites, and a third in Glenburn. The total purchase price is $85,000 of which the buyer made a down payment of $8500. The sellers’ business affairs being under the supervision of the Bankruptcy Court, the sale required the approval and confirmation of the referee in bankruptcy, which the sellers promptly obtained. Shortly thereafter, the buyer refused to complete his purchase and the sellers brought a petition in the Bankruptcy Court to compel him to do so. The buyer countered with a cross petition for the return of his deposit and for reimbursement of certain expenses paid by him for abstracts of title to the real estate involved in the sale. In the nearly three years that followed, four hearings were held by the referee in bankruptcy and his findings of fact in each of these hearings were reviewed and affirmed by the district court. From each of the four orders entered by the district court affirming the referee’s findings the buyer appeals.
At the initial hearing the buyer’s basic contention was that he is relieved of his obligation to complete the purchase (1) because he is being called upon to accept substantially less acreage in the Union Street site than the sellers had agreed to convey, and (2) that on the date the sale was confirmed the seller was not in a position to deliver good and merchantable title.
The acreage issue raises substantial questions of fact and law which were discussed by the referee at some length. The buyer relies principally upon a clause in his offer which refers to the Union Street site as “consisting of 70 acres more or less.” It appears that the entire Union Street site consists of some sixty-six acres including thirteen house lots with an area of about one acre each. The remaining portion is industrial property which had been used by the sellers in connection with their former business. Located thereon is a stone quarry, a stone crusher and some accessory buildings. This industrial portion contains about fifty-three acres. The sellers contend that this is the only portion of the site involved in the sale. The buyer claims he is entitled under his contract to sixty-six acres.
The following evidence was adduced on this issue. On July 3, 1961, some fifteen days before the buyer made his offer, he, an attorney for the sellers, and a consulting geologist made an inspection of the Union Street property. The geologist pointed out the boundaries of the industrial portion. The attorney stated he was uncertain of the exact acreage but gave the buyer two deeds covering the entire site which the sellers had received when they bought this property. The buyer was aware of the total acreage recited in these two deeds and took them with him to read leisurely that evening. While at the site the attorney for the sellers told the buyer that the house lots were not included in the sale. A few days later, but still well before the time the buyer submitted his offer, one of the sellers gave him a detailed map of the Union Street property on which he pointed out the boundaries of the industrial portion of the property. On the basis of this evidence the referee found that under the circumstances any disparity in acreage in the Union Street property was of no material consequence; that there was not the slightest evidence of any misrepresentation of the acreage by the sellers and any mistake with reference to it was entirely the fault of the buyer.
In support of his contention of unmer-chantability, the buyer alleged certain in-sufficiencies of title and numerous specific deficiencies in the conduct and confirmation of the sale. The referee rejected the claim of insufficiency of title and made a seriatim disposition of the objections raised to the sale as trifling and inconsequential. He also made an overall finding applicable to both issues that the dealings of the parties constituted a judicial sale, the finality of which he would not disturb in the absence of substantial grounds. Thereupon the referee denied the buyer’s motion for refund of his deposit, allowed him reimbursement of his title expenses in an amount to be determined, and ordered the buyer to complete his purchase. On review, the district court affirmed the referee’s findings but ruled that under his agreement the buyer is entitled to take these properties free and clear of any encumbrances that would render them un-merchantable and recommitted the case to the referee for such a finding.
This necessitated the second hearing. At this hearing the sellers produced evidence that the title to each of the properties involved was good and merchantable as of the date the sale was confirmed. The buyer offered no evidence. The referee found that the sellers “are now in a position as indeed they have been at all relevant times in the past, to convey a good and merchantable title to these premises.” In this second hearing the referee also took occasion to reaffirm his previous findings, again ordered the buyer to complete his purchase and in the event he failed to do so, authorized the sellers to resell the property for the buyer’s account and hold him liable for any resulting deficiency.
More than two years having passed since the sale was confirmed and the buyer still not having completed his purchase, the sellers succeeded in obtaining another purchaser for part of the property and petitioned the referee to confirm the resale. While this was pending it was discovered that the sellers’ lease to the Braley Pit which was involved in the resale, had never been recorded and that the fee in the property bad since been sold to a bona fide purchaser who recorded his deed apparently without actual notice of the lease. Neither party had any previous knowledge of this defect and it was the first time it had been called to the attention of the referee.
The case, which was then pending in this court, was promptly remanded to the district court and from there was again sent to the referee for a determination of title. At this hearing the original buyer strongly urged that the previous orders directing him to complete his purchase be vacated since it was clear that the sellers had no title to a material portion of the properties when the sale was confirmed. The sellers testified that when this defect became known to them they cured it promptly by purchasing the fee. The referee found that this made the title fully marketable; that time not being of the essence of the agreement, once the defect was discovered the sellers were entitled to a reasonable opportunity to cure it as long as this did not result in any hardship to the purchaser; that since the original purchaser had long ago decided not to complete his purchase, this belated action was not harmful or prejudicial to him. Shortly thereafter, this matter came before the referee and the district court for the fourth time — -this time on the sellers’ amended petition for confirmation of the resale, which was granted.
It is well settled that the district court is bound by the referee’s findings of fact unless they are clearly erroneous and this court, in considering the district court’s findings of fact, is bound by the same rule. Brown v. Freedman, 125 F.2d 151, 154 (1st Cir. 1942). We have reviewed the findings of fact made by the referee and the district court and we cannot say they are clearly erroneous. The finding that only the industrial portion of the Union Street site was involved in the sale is certainly supported by substantial evidence. The buyer knew or should have known that only the industrial portion was included. He was so informed the day he viewed the property. The boundaries were visibly pointed out to him that day and were shown to him on a map a few days later. This finding is further buttressed by the fact that the buyer had intended to use the property for the same general purposes for which the sellers had used it and that most of the house lots had already been sold and the sales confirmed by the bankruptcy court.
There is absolutely no evidence of any fraud or misrepresentation of any kind having been practiced by the sellers and there is ample evidentiary basis for finding that any mistake with reference to the acreage was unilateral and not the fault of the sellers. Such mistake does not excuse the buyer from performance. Staley v. Dwyer, 29 F.2d 982, 984 (8th Cir. 1928); Bibber v. Carville, 101 Me. 59, 63 A. 303 (1905). Also there is sufficient evidence to support the findings of the referee and the district court that the numerous title and other objections raised by the buyer were untimely, were also without merit and that the title to these properties is fully marketable. In fact the district court properly characterized most of the buyer’s objections as “patently specious.”
From a review of all the evidence it is clear that the buyer’s repudiation of his contract was for reasons wholly unrelated to the quality of the title and as pointed out by the district court, there was ample evidence to support such a finding.
To be sure, the referee’s finding of merchantability made in the second hearing turned out to be erroneous with reference to the Braley Pit, but this finding was made solely upon the basis of the evidence presented. It should be noted, however, that this defect was not known or discovered by the buyer or relied upon by him as a ground for repudiation of the sale. When it came to the attention of the sellers, they cured it promptly and no hardship or prejudice to the buyer resulted. His attempt to use it now as a device to avoid his agreement does not impress us. Higgins v. Eagleton, 155 N.Y. 466, 50 N.E. 287 (1898). See 3A Corbin on Contracts (1960) § 762. Moreover, he had repudiated his contract long before he learned of this defect. A buyer who intends to assert such defects as grounds for repudiation of an agreement of sale must bring them to the attention of the seller so that he may have a reasonable opportunity to cure them. 3 American Law of Property § 11.51 (Casner Ed. 1952). This was not done here. From our appraisal of the sellers’ conduct in this case we are satisfied that if the buyer had given them timely notice of the title objections which he later asserted in these proceedings, the sellers would have promptly cured them.
Where a seller has not been at fault and time is not of the essence of the agreement, he has the right to clear defects and perfect title during the specific performance proceedings as long as this does not result in hardship or prejudice to the buyer. 3 American Law of Property § 11.51 (Casner Ed. 1952); Pomeroy, Specific Performance of Contracts, § 421 (3d Ed. 1926). Both the referee and the district court found that the sellers were not at fault here; that time was not of the essence of this transaction and that since the buyer had long ago elected not to complete his purchase for reasons unrelated to the objections he asserted, he was not harmed or prejudiced by the belated curing of this title defect in the Braley Pit property. These findings are not clearly erroneous. There was ample evidence to support them. In fact the buyer’s unwarranted attempt to escape his contractual obligation seemed to permeate the whole ease.
Finally, it must be remembered that the sale with which we are concerned in this ease is a judicial sale. In re United Toledo Co., 152 F.2d 210, 211 (6th Cir. 1945) ; In re Hollingsworth & Whitney Co., 242 F. 753, 756 (1st Cir. 1917) ; In re California Eastern Airways, 95 F. Supp. 348, 351 D.C.Del. 1951). The parties are acting under the supervision of the bankruptcy court. It cannot be denied that the buyer knew this. Judicial sales are not governed by the ordinary rules pertaining to private sales of real and personal property. It has long been established that they enjoy a certain favor in the law and every reasonable intendment must be made in favor of their validity. Cox v. Hart, 145 U.S. 376, 12 S.Ct. 962, 36 L.Ed. 741 (1892). In the absence of substantial grounds, we are reluctant to disturb the finality of a judicial sale. Currin v. Nourse et al, 66 F.2d 137, 140 (8th Cir. 1933); In re Hoffman et al, 16 F.2d 939, 940 (D.C.E.D. Pa. 1927). We find no such substantial grounds here.
Affirmed.
. Halpern was the original respondent-appellant but having gone into bankruptcy during the pendency of these proceedings, Warren <5. Schwartz, his trustee in bankruptcy, was substituted as appellant.
. The offer was made on July 18, 1961, accepted in writing on July 25 and the sale was confirmed by the referee on August 11,1961.
. During the six weeks period between the date of his offer, and early in September when he repudiated the sale, the buyer had the keys to some of the buildings, readied some of them for use, made minor repairs and acted generally, as though he were the owner.
. The agreement of sale required the sellers to furnish these abstracts which they did not do and the buyer obtained them at his own expense.
. These four appeals have been consolidated and are being heard together by order of this court.
. The order confirming the sale contains the same language.
. Prior to the Chapter XI proceeding, the sellers were in the highway and airport construction business and used this portion of the Union Street site and the other properties involved in this case in connection with their business. The North Bangor 'site which is under lease to the sellers for an indefinte period, contains about three acres. On it is a railroad siding, accessory buildings and some stockpiled materials. At G-lenburn the sellers have a twelve acre tract known as the B & A Pit on which there are sand and gravel deposits. They also have a leasehold interest in other property in the same vicinity called the Braley Pit which contains similar deposits and is included in the sale. There is evidence that the buyer intended to use these properties for the same general purposes as the sellers had used them.
. The deeds showed a total acreage of 66.12 acres in the entire site. One deed recited 46.75 acres — the other 19.37 acres. In addition, both had metes and bounds descriptions of the parcels conveyed.
. In fact most of these house lots had already been sold and the sales confirmed by the bankruptcy court. Also it should be noted that these lots were under the control of the liquidating agents and the debtors in possession had no authority to sell them.
. Amongst others, the buyer raised the following objections to the sale which were dismissed by the referee: (a) that the sellers had only thirty days to close the sale and did not do so within that period; (b) that the sellers did not pre-pay the rent or prorate taxes as agreed; (e) that the sellers did not obtain a written consent from the lessor relative to lease rights enjoyed by the sellers; (d) failure of sellers to furnish abstracts of title as agreed; (e) technical defects in referee’s confirmation of the sale and (f) the sale did not comply with the Statute of Frauds in that it lacked a sufficient memorandum in writing.
. In addition to other evidence, a title expert testified that with two possible exceptions, no liens or encumbrances rendering the title unmerchantable existed against these properties as of September 15, 1961. It appeared that these two possible liens had been discharged but in any event they were susceptible of money satisfaction and could have been paid out of the proceeds of the sale on the day of the closing.
. The referee also provided that within thirty days of the completion of the resale, the sellers are authorized to make application for an award of damages against the respondent in such amount as the bankruptcy court shall determine just and proper. The buyer did not obtain a stay of this order.
. He also contended that in view of the pending resale it was futile to compel him to complete the purchase and in addition, that this case had now become an action for damages for breach of contract. See fn. 12.
. And introduced in evidence a deed dated January 6, 1964, showing a conveyance to them of the fee in the Braley Pit by the then record owner of this property.
. We are not impressed with the buyer’s argument that this title defect was cured solely for the beneft of the new purchaser and not for him or by his contention that he should be relieved of his obligation to purchase because the properties had deteriorated and depreciated in value due to the delay caused, by this litigation. Much of this delay was caused by the dilatory tactics of the buyer.
. See Berry v. Berry, 288 Ky. 239, 156 S.W.2d 123 (1941); Landers v. Scroggy, 294 Ky. 848, 172 S.W.2d 557 (1943).
. No title objections of any kind were raised by the buyer in September of 1961 when he first indicated his intention to repudiate the sale or in his answer to the sellers’ petition to compel him to complete the purchase. At the confirmation hearing before the referee, buyer’s son was present and he raised no objections of any kind.
. And approved by the district court.
. It cannot be expected that the referee had any obligation to make an independent title examination of these properties.
. The district court found that all defects of which the buyer complained in the first bearing were cleared before tbe end of tbe second bearing.
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_appel2_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 appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
NYE et al. v. UNITED STATES et al. ELMORE v. COUNCIL et al.
No. 4640.
Circuit Court of Appeals, Fourth Circuit.
Aug. 30, 1940.
L. R. Varser and T. A. McNeill, both of Lumberton, N. C. (Varser, McIntyre & Henry, of Lumberton, N. C., on the brief), for appellants.
William B. Guthrie, of Durham, N. C. (Guthrie & Guthrie, of Durham, N. C., on the brief), for appellee W. B. Guthrie.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
SOPER, Circuit Judge.
R. H. Nye and L. C. Meares (Mayers) appeal from a judgment of the District Court whereby they were adjudged guilty of contempt of court by reason of conduct tending to obstruct the administration of justice. The offense occurred in connection with a suit brought by W. H. Elmore, Administrator of the estate of James Elmore, deceased, against G. T. Council and Germain Bernard, trading as B-C Remedy Company, in which the administrator charged that the deceased came to his death through the consumption of a dangerous and poisonous headache powder manufactured by the defendants. The behavior of Nye and Meares was brought to the attention of the court, and the court having made due inquiry, ordered them to show cause why they should not be adjudged guilty of contempt, heard the evidence of both sides and entered the judgment appealed from. Thereby Nye was ordered to pay a fine of $500 and costs of the proceeding, including the sum of $500 to the plaintiff’s attorney as compensation for his efforts and expenses incurred on the plaintiff’s behalf in bringing the contemptuous conduct of the appellants to the attention of the court; and Meares was ordered to pay a fine of $500.
The findings of the District Judge, amply supported by the evidence, disclosed in substance the following facts: On March 16, 1939, leave was granted to the administrator to prosecute his suit against the Remedy Company in forma pauperis. W. B. Guthrie was appointed as attorney to represent him. On March 18, 1939 suit for wrongful death claiming damages in the sum of $30,000 was brought. Answer was filed on April 29, 1939. Meanwhile, on April 19, 1939, Elmore, the administrator, mailed a letter addressed to the District Judge at Greensboro, North Carolina, requesting that the case be dismissed and enclosing a similar communication addressed to his attorney. This effort to dismiss the suit was brought about improperly by Nye, with the fcooperation of,Meares. Nye’s daughter had married the son of Council, one of the owners of the headache powder business; and Nye, being a shrewd business man of great energy and ingenuity, undertook to put an end to the Elmore suit.
To this end, he sent Meares, his tenant, who was personally acquainted with Elmore, to Elmore’s home near Conway, South Carolina, to bring Elmore by automobile to Nye’s home at Lumberton, North Carolina. Elmore is an illiterate man, feeble in mind and body, and 'both appellants had knowledge of his condition. Meares found Elmore working in a ditch, plied him with liquor until he was under its influence, and then giving him no >opportunity to go to his home nearby and change his clothes, took him to Lumberton under a promise to return him to his home that night. First they went to Nye’s place of business when a conversation between him and Elmore took place. Nye then tried to get his lawyer, but failing, made an appointment for a conference at the lawyer’s office the next morning. Elmore had a son living in Lumberton, but nevertheless he was taken to Nye’s home where Elmore and Meares occupied the same room for the night. Drinking continued during the night.
Thé next morning Nye took Elmore to the lawyer’s, office who prepared the letters to the judge and to Elmore’s attorney, and also prepared a final administration account to be filed in the Probate Court in North Carolina. For these services Nye paid the lawyer’s fee. Nye then took Elmore to the Probate Court, had him discharged as administrator and paid the clerk a fee of $1. Nye then took Elmore to the post office, registered the letter to the judge and paid the postage.
Although Meares got Elmore under control by giving him intoxicating liquor, he was not under the influence of liquor when he signed the papers in the lawyer’s office, nor was he promised or paid anything. Nevertheless he was at the time still completely under the control of Nye and Meares. Upon these facts the judge held that the conduct of Nye and Meares constituted misbehavior so near to the presence of the court as to obstruct and impede the due administration of justice, and accordingly found each of them guilty of comtempt of court.
The federal statutes relating to contempt are codified in 28 U.S.C.A. §§ 385-390. It is provided in § 385, insofar as it relates to the instant case, that the power to punish contempts “shall not be construed to extend to any cases except of misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice”. The suggestion was made in the lower court that the acts charged against the appellants were not punishable by the District Court of the Middle' District of North Carolina since they took place outside the boundaries of the District and beyond its jurisdiction. The position is not tenable and very properly was not insisted upon in this court. The quoted statutory phrase is not “to be spatially construed”, McCann v. New York Stock Exchange, 2 Cir., 80 F.2d 211, 213, certiorari denied McCann v. Leibell, 299 U.S. 603, 57 S.Ct. 233, 81 L.Ed. 444. “The provision conferred no power not already granted and imposed no limitations not already existing. In other words, it served but to plainly mark the boundaries of the existing authority. * * * The test therefore is the character of the act done and its direct tendency to prevent and obstruct * * * judicial duty”. Toledo Newspaper Co. v. United States, 247 U.S. 402, 418, 419, 38 S.Ct. 560, 564, 62 L.Ed. 1186; Myers v. United States, 264 U.S. 95, 44 S.Ct. 272, 68 L.Ed. 577; see also Sullivan v. United States, 8 Cir., 4 F.2d 100. Although the undue pressure exerted by the appellants upon Elmore took place at a distance from the court, it culminated in the letters addressed to the judge and Elmore’s attorney directing the dismissal of the suit, and effectually interfered with the court in the performance of its functions. It is uniformly held that conduct attended by such a result takes place “so near” to the court as to obstruct the administration of justice. See 28 U.S.C.A. § 385, n. 13.
The contention chiefly emphasized by the appellants is that the District Court was without jurisdiction to issue the order to show cause because it was based upon a petition and motion of Elmore’s attorney which was not verified by affidavit. This contention is utterly without merit in this case, although it be assumed, as many courts hold, that an affidavit is a jurisdictional requirement in such a situation. The attorney’s petition and motion were filed on September 20, 1939, unaccompanied by an affidavit; but such an affidavit was filed on October 7, 1939, no action having been taken by the appellants in the meantime. They first appeared in answer to the court’s order on October 30, 1939, and then moved the court to strike out the order, not on the ground that the motion was not supported by affidavit, hilt on the ground that all of the actions complained of took place' either in South Carolina or in the Eastern District of North Carolina, and none of them took place in the Middle District of North Carolina where the Elmore suit was pending. These motions were overruled properly as has already been shown, and both parties offered testimony at the conclusion of which the judge took the matter under advisement until November 17. It was not until that date that the appellants moved to dismiss the proceeding because of the lack of an affidavit. Under these circumstances, it is obvious that the appellants waived the defect by their participation in the proceeding, even if it be supposed that the filing of an affidavit on October 7 was too late. See Sona v. Aluminum Castings Co., 6 Cir., 214 F. 936; In re Odum, 133 N.C. 250, 45 S.E. 569; In re Fletcher, 71 App.D.C. 108, 107 F.2d 666 ; 2 A.L.R. 236, note.
Moreover, a complete answer to the contention resides in the fact that the judge’s order to show cause was not issued until both Nye and Elmore had been subpoenaed and had testified on separate occasions as to the occurrences preceding the attempted dismissal of the suit, and the judge had satisfied himself that reasonable grounds existed for the charge of contempt of court. Indeed the contempt proceeding was precipitated by a motion of the defendants filed in the death case on August 29, 1939, to dismiss that action because the estate of the deceased had been fully administered and Elmore, having been discharged as administrator, was no longer qualified to press the suit in that capacity. It was subsequent to this action that Elmore’s attorney petitioned the court to cite the appellants for contempt and the proceedings leading to the judgment were taken. Manifestly the citation for contempt was not issued without proper foundation, and the charge was not prosecuted without due notice to the accused.
There can be no question that the District Judge was justified upon his finding of facts in concluding that the appellants’ conduct amounted to contempt of court, in that they placed Elmore completely under their domination and control and procured from him, while his will was subject to theirs, the letter designed to prevent the trial of the death case upon its merits. Many adjudications of contempt from improper interference with jurors, witnesses or officials of the court in the course of litigation are found in the books; and precedents are not lacking of contemptuous conduct that affected even more vitally the administration of justice by interfering with the litigants themselves in the prosecution of claims in courts of justice.
An example is found in the State of North Carolina itself in Snow v. Hawkes, 183 N.C. 365, 111 S.E. 621, 23 A.L.R. 183, in which the plaintiff in a seduction suit was induced by threat of imprisonment by the father of the defendant to withdraw his suit. Threats of retaliation in case a plaintiff persisted in his suit were held contemptuous in Wilson v. Irwin, 144 Ky. 311, 138 S.W. 373, 42 L.R.A.,N.S., 722; Turk v. State, 123 Ark. 341, 185 S.W. 472. In the latter case the court said (123 Ark. page 346, 185 S.W. page 473): “It is universally held that intimidating a witness and preventing his appearance at court or procuring him to absent himself from the trial is a contempt of court. Preventing the appearance of a litigant in court for the prosecution of a suit brought to enforce a right by intimidation and threats is such an obstruction of judicial procedure as renders absolutely worthless all process of the court which is instituted for the enforcement and protection of the rights and the redress and prevention of wrongs of the litigants. It destroys the dignity and power of the court and brings the administration of justice into disrepute.”
See, also, Whittem v. State, 36 Ind. 196; Sharland v. Sharland, 1 Times L.R. 492; Bromilow v. Phillips, 1892, 40 Week.Rep. 220; Smith v. Lakeman, [1856] 26 L.J.Ch.,N.S., 305; Re Muloch, [1864] 33 L.J.Prob.,N.S., 205; Webster v. Bakewell, [1916] 85 L.J.Ch.,N.S., 326.
No valid distinction in law exists between cases of this sort, in which the litigant’s freedom of action was obstructed by threats and physical compulsion, and the instant case of undue influence and pressure equally effective in restraining the litigant from the assertion of a valuable claim in a court of justice. The obstruction of the administration of justice which stigmatizes the act as contempt of court is found in all of them.
The record in the instant case shows that pending the appeal Elmore, administrator, as plaintiff in the death case, voluntarily submitted to a judgment of non suit. On this account the appellants say that he indicated that he did not wish to push his case any further, and hence there is no substance in the supposed invasion of his rights which the contempt proceedings, were instituted to protect. The brief of the appellant, however, admits that the non suit may have been taken by Elmore in consideration of a payment to him; and in the argument it transpired that he was in fact paid a substantial sum for the dismissal of the case. The contention serves only to emphasize the propriety and necessity of the action taken by the District. Court.
Affirmed.
The imposition of a fine in a contempt proceeding in order to compensate the complainant is considered in Cary Mfg. Co. v. Acme Flexible Clasp Co., 2 Cir., 108 F. 873; Kreplik v. Couch Patents Co., 1 Cir., 190 F. 565; Merchants’ S. & G. Co. v. Board of Trade of Chicago, 8 Cir., 201 F. 20; Oates v. United States, 4 Cir., 233 F. 201.
Contempts are generally classified as direct and constructive, that is, those committed in the physical presence of the court and those committed without. At common law an aflidavit was considered unnecessary in direct contempts because the court takes judicial notice of matters occurring before it; but in constructive contempts, when the proceeding was instituted by a private person, an affidavit was generally considered necessary in order to give notice both to the court and to the alleged contemnor. Rapalje on Contempts, p. 121; Blackstone, Commentaries, 1807 Ed., Vol. 4, p. 286; Sona v. Aluminum Castings Co., 6 Cir., 214 F. 936; 2 A.L.R. 225, note. Cf. Bowles v. United States, 4 Cir., 50 F.2d 848, 851; In re Fletcher, 71 App.D.C. 108, 107 F.2d 666, in which it was held that an affidavit is not necessary in contempt proceedings under 28 U.S.O.A. § 385, although prescribed by the statute in proceedings under § 386.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
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sc_petitioner
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169
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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.
HILLSBORO NATIONAL BANK v. COMMISSIONER OF INTERNAL REVENUE
No. 81-485.
Argued November 1, 1982
Decided March 7, 1983
O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and White, Powell, and Rehnquist, JJ., joined, and in Parts I, II, and IV of which Brennan, J., joined. Brennan, J., filed an opinion concurring in part and dissenting in part, post, p. 403. Stevens, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Marshall, J., joined, post, p. 403. Blackmun, J., filed a dissenting opinion, post, p. 422.
Harvey B. Stephens argued the cause for petitioner in No. 81-485. With him on the briefs were Mark H. Ferguson and Robert A. Stuart.
James Silhasek argued the cause and filed a brief for respondent in No. 81-930.
Solicitor General Lee argued the cause for the United States in No. 81-930 and respondent in No. 81-485. With him on the briefs were Assistant Attorney General Archer, Stuart A. Smith, GaryR. Allen, Jay W. Miller, and David I. Pincus.
Together with No. 81-930, United States v. Bliss Dairy, Inc., on cer-tiorari to the United States Court of Appeals for the Ninth Circuit.
Briefs of amici curiae urging affirmance in No. 81-930 were filed by Jack R. White and Steven W. Bacon for Ameron, Inc.; and by Arthur A. Armstrong, pro se.
Justice O’Connor
delivered the opinion of the Court.
These consolidated cases present the question of the applicability of the tax benefit rule to two corporate tax situations: the repayment to the shareholders of taxes for which they were liable but that were originally paid by the corporation; and the distribution of expensed assets in a corporate liquidation. We conclude that, unless a nonrecognition provision of the Internal Revenue Code prevents it, the tax benefit rule ordinarily applies to require the inclusion of income when events occur that are fundamentally inconsistent with an earlier deduction. Our examination of the provisions granting the deductions and governing the liquidation in these cases leads us to hold that the rule requires the recognition of income in the case of the liquidation but not in the case of the tax refund.
I
In No. 81-485, Hillsboro National Bank v. Commissioner, the petitioner, Hillsboro National Bank, is an incorporated bank doing business in Illinois. Until 1970, Illinois imposed a property tax on shares held in incorporated banks. Ill. Rev. Stat., ch. 120, §557 (1971). Banks, required to retain earnings sufficient to cover the taxes, § 558, customarily paid the taxes for the shareholders. Under § 164(e) of the Internal Revenue Code of 1954, 26 U. S. C. § 164(e), the bank was allowed a deduction for the amount of the tax, but the shareholders were not. In 1970, Illinois amended its Constitution to prohibit ad valorem taxation of personal property owned by individuals, and the amendment was challenged as a violation of the Equal Protection Clause of the Federal Constitution. The Illinois courts held the amendment unconstitutional in Lake Shore Auto Parts Co. v. Korzen, 49 Ill. 2d 137, 273 N. E. 2d 592 (1971). We granted certiorari, 405 U. S. 1039 (1972), and, pending disposition of the case here, Illinois enacted a statute providing for the collection of the disputed taxes and the placement of the receipts in escrow. Ill. Rev. Stat., ch. 120, ¶ 676.01 (1979). Hillsboro paid the taxes for its shareholders in 1972, taking the deduction permitted by § 164(e), and the authorities placed the receipts in escrow. This Court upheld the state constitutional amendment in Lehnhausen v. Lake Shore Auto Parts Co., 410 U. S. 356 (1973). Accordingly, in 1973 the County Treasurer refunded the amounts in escrow that were attributable to shares held by individuals, along with accrued interest. The Illinois courts held that the refunds belonged to the shareholders rather than to the banks. See Bank & Trust Co. of Arlington Heights v. Cullerton, 25 Ill. App. 3d 721, 726, 324 N. E. 2d 29, 32 (1975) (alternative holding); Lincoln National Bank v. Cullerton, 18 Ill. App. 3d 953, 310 N. E. 2d 845 (1974). Without consulting Hillsboro, the Treasurer refunded the amounts directly to the individual shareholders. On its return for 1973, Hillsboro recognized no income from this sequence of events. The Commissioner assessed a deficiency against Hillsboro, requiring it to include as income the amount paid its shareholders from the escrow. Hillsboro sought a redetermi-nation in the Tax Court, which held that the refund of the taxes, but not the payment of accrued interest, was includible in Hillsboro’s income. On appeal, relying on its earlier decision in First Trust and Savings Bank of Taylorville v. United States, 614 F. 2d 1142 (1980), the Court of Appeals for the Seventh Circuit affirmed. 641 F. 2d 529, 531 (1981).
In No. 81-930, United States v. Bliss Dairy, Inc., the respondent, Bliss Dairy, Inc., was a closely held corporation engaged in the business of operating a dairy. As a cash basis taxpayer, in the taxable year ending June 30, 1973, it deducted upon purchase the full cost of the cattle feed purchased for use in its operations, as permitted by § 162 of the Internal Revenue Code, 26 U. S. C. § 162. A substantial portion of the feed was still on hand at the end of the taxable year. On July 2, 1973, two days into the next taxable year, Bliss adopted a plan of liquidation, and, during the month of July, it distributed its assets, including the remaining cattle feed, to the shareholders. Relying on §336, which shields the corporation from the recognition of gain on the distribution of property to its shareholders on liquidation, Bliss reported no income on the transaction. The shareholders continued to operate the dairy business in noncorporate form. They filed an election under § 333 to limit the gain recognized by them on the liquidation, and they therefore calculated their basis in the assets received in the distribution as pro-' vided in § 334(c). Under that provision, their basis in the assets was their basis in their stock in the liquidated corporation, decreased by the amount of money received, and increased by the amount of gain recognized on the transaction. They then allocated that total basis over the assets, as provided in the regulations, Treas. Reg. §1.334-2, 26 CFR § 1.334-2 (1982), presumably taking a basis greater than zero in the feed, although the amount of the shareholders’ basis is not in the record. They in turn deducted their basis in the feed as an expense of doing business under § 162. On audit, the Commissioner challenged the corporation’s treatment of the transaction, asserting that Bliss should have taken into income the value of the grain distributed to the shareholders. He therefore increased Bliss’ income by $60,000. Bliss paid the resulting assessment and sued for a refund in the District Court for the District of Arizona, where it was stipulated that the grain had a value of $56,565, see Pretrial Order, at 3. Relying on Commissioner v. South Lake Farms, Inc., 324 F. 2d 837 (CA9 1963), the District Court rendered a judgment in favor of Bliss. While recognizing authority to the contrary, Tennessee-Carolina Transportation, Inc. v. Commissioner, 582 F. 2d 378 (CA6 1978), cert. denied, 440 U. S. 909 (1979), the Court of Appeals saw South Lake Farms as controlling and affirmed. 645 F. 2d 19 (CA9 1981) (per curiam).
“If—
“(1) property was acquired by a shareholder in the liquidation of a corporation in cancellation or redemption of stock, and
“(2) with respect to such acquisition—
“(A) gain was realized, but
“(B) as the result of an election made by the shareholder under section 333, the extent to which gain was recognized was determined under section 333,
“then the basis shall be the same as the basis of such stock cancelled or redeemed in the liquidation, decreased in the amount of any money received by the shareholder, and increased in the amount of gain recognized to him.”
The Government in each case relies solely on the tax benefit rule — a judicially developed principle that allays some of the inflexibilities of the annual accounting system. An annual accounting system is a practical necessity if the federal income tax is to produce revenue ascertainable and payable at regular intervals. Burnet v. Sanford & Brooks Co., 282 U. S. 359, 365 (1931). Nevertheless, strict adherence to an annual accounting system would create transactional inequities. Often an apparently completed transaction will reopen unexpectedly in a subsequent tax year, rendering the initial reporting improper. For instance, if a taxpayer held a note that became apparently uncollectible early in the taxable year, but the debtor made an unexpected financial recovery before the close of the year and paid the debt, the transaction would have no tax consequences for the taxpayer, for the repayment of the principal would be recovery of capital. If, however, the debtor’s financial recovery and the resulting repayment took place after the close of the taxable year, the taxpayer would have a deduction for the apparently bad debt in the first year under § 166(a) of the Code, 26 U. S. C. § 166(a). Without the tax benefit rule, the repayment in the second year, representing a return of capital, would not be taxable. The second transaction, then, although economically identical to the first, could, because of the differences in accounting, yield drastically different tax consequences. The Government, by allowing a deduction that it could not have known to be improper at the time, would be foreclosed from recouping any of the tax saved because of the improper deduction. Recognizing and seeking to avoid the possible distortions of income, the courts have long required the taxpayer to recognize the repayment in the second year as income. See, e. g., Estate of Block v. Commissioner, 39 B. T. A. 338 (1939), aff’d sub nom. Union Trust Co. v. Commissioner, 111 F. 2d 60 (CA7), cert. denied, 311 U. S. 658 (1940); South Dakota Concrete Products Co. v. Commis sioner, 26 B. T. A. 1429 (1932); Plumb, The Tax Benefit Rule Today, 57 Harv. L. Rev., 129, 176, 178, and n. 172 (1943) (hereinafter Plumb).
The taxpayers and the Government in these eases propose different formulations of the tax benefit rule. The taxpayers contend that the rule requires the inclusion of amounts recovered in later years, and they do not view the events in these cases as “recoveries.” The Government, on the other hand, urges that the tax benefit rule requires the inclusion of amounts previously deducted if later events are inconsistent with the deductions; it insists that no “recovery” is necessary to the application of the rule. Further, it asserts that the events in these cases are inconsistent with the deductions taken by the taxpayers. We are not in complete agreement with either view.
An examination of the purpose and accepted applications of the tax benefit rule reveals that a “recovery” will not always be necessary to invoke the tax benefit rule. The purpose of the rule is not simply to tax “recoveries.” On the contrary, it is to approximate the results produced by a tax system based on transactional rather than annual accounting. See generally Bittker & Kanner 270; Byrne, The Tax Benefit Rule as Applied to Corporate Liquidations and Contributions to Capital: Recent Developments, 56 Notre Dame Law. 215, 221, 232, (1980); Tye, The Tax Benefit Doctrine Reexamined, 3 Tax L. Rev. 329 (1948) (hereinafter Tye). It has long been accepted that a taxpayer using accrual accounting who accrues and deducts an expense in a tax year before it becomes payable and who for some reason eventually does not have to pay the liability must then take into income the amount of the expense earlier deducted. See, e. g., Mayfair Minerals, Inc. v. Commissioner, 456 F. 2d 622 (CA5 1972) (per curiam); Bear Manufacturing Co. v. United States, 430 F. 2d 152 (CA7 1970), cert. denied, 400 U. S. 1021 (1971); Haynsworth v. Commissioner, 68 T. C. 703 (1977), affirmance order, 609 F. 2d 1007 (CA5 1979); G. M. Standifer Construction Corp. v. Commissioner, 30 B. T. A. 184, 186-187 (1934), petition for review dism’d, 78 F. 2d 285 (CA9 1935). The bookkeeping entry canceling the liability, though it increases the balance sheet net worth of the taxpayer, does not fit within any ordinary definition of “recovery.” Thus, the taxpayers’ formulation of the rule neither serves the purposes of the rule nor accurately reflects the cases that establish the rule. Further, the taxpayers’ proposal would introduce an undesirable formalism into the application of the tax benefit rule. Lower courts have been able to stretch the definition of “recovery” to include a great variety of events. For instance, in cases of corporate liquidations, courts have viewed the corporation’s receipt of its own stock as a “recovery,” reasoning that, even though the instant that the corporation receives the stock it becomes worthless, the stock has value as it is turned over to the corporation, and that ephemeral value represents a recovery for the corporation. See, e. g., Tennessee-Carolina Transportation, Inc. v. Commissioner, 582 F. 2d, at 382 (alternative holding). Or, payment to another party may be imputed to the taxpayer, giving rise to a recovery. See First Trust and Savings Bank of Taylorville v. United States, 614 F. 2d, at 1146 (alternative holding). Imposition of a requirement that there be a recovery would, in many cases, simply require the Government to cast its argument in different and unnatural terminology, without adding anything to the analysis.
The basic purpose of the tax benefit rule is to achieve rough transactional parity in tax, see n. 12, supra, and to protect the Government and the taxpayer from the adverse effects of reporting a transaction on the basis of assumptions that an event in a subsequent year proves to have been erroneous. Such an event, unforeseen at the time of an earlier deduction, may in many cases require the application of the tax benefit rule. We do not, however, agree that this consequence invariably follows. Not every unforeseen event will require the taxpayer to report income in the amount of his earlier deduction. On the contrary, the tax benefit rule will “cancel out” an earlier deduction only when a careful examination shows that the later event is indeed fundamentally inconsistent with the premise on which the deduction was initially based. That is, if that event had occurred within the same taxable year, it would have foreclosed the deduction. In some cases, a subsequent recovery by the taxpayer will be the only event that would be fundamentally inconsistent with the provision granting the deduction. In such a case, only actual recovery by the taxpayer would justify application of the tax benefit rule. For example, if a calendar-year taxpayer made a rental payment on December 15 for a 30-day lease deductible in the current year under § 162(a)(3), see Treas. Reg. § 1.461-l(a)(l), 26 CFR § 1.461-l(a)(l) (1982); e. g., Zaninovich v. Commissioner, 616 F. 2d 429 (CA9 1980), the tax benefit rule would not require the recognition of income if the leased premises were destroyed by fire on January 10. The resulting inability of the taxpayer to occupy the building would be an event not fundamentally inconsistent with his prior deduction as an ordinary and necessary business expense under § 162(a). The loss is attributable to the business and therefore is consistent with the deduction of the rental payment as an ordinary and necessary business expense. On the other hand, had the premises not burned and, in January, the taxpayer decided to use them to house his family rather than to continue the operation of his business, he would have converted the leasehold to personal use. This would be an event fundamentally inconsistent with the business use on which the deduction was based. In the case of the fire, only if the lessor — by virtue of some provision in the lease — had refunded the rental payment would the taxpayer be required under the tax benefit rule to recognize income on the subsequent destruction of the building. In other words, the subsequent recovery of the previously deducted rental payment would be the only event inconsistent with the provision allowing the deduction. It therefore is evident that the tax benefit rule must be applied on a case-by-case basis. A court must consider the facts and circumstances of each case in the light of the purpose and function of the provisions granting the deductions.
When the later event takes place in the context of a nonrecognition provision of the Code, there will be an inherent tension between the tax benefit rule and the nonrecognition provision. See Putoma Corp. v. Commissioner, 601 F. 2d 734, 742 (CA5 1979); id., at 751 (Rubin, J., dissenting); cf. Helvering v. American Dental Co., 318 U. S. 322 (1943) (tension between exclusion of gifts from income and treatment of cancellation of indebtedness as income). We cannot resolve that tension with a blanket rule that the tax benefit rule will always prevail. Instead, we must focus on the particular provisions of the Code at issue in any case.
The formulation that we endorse today follows clearly from the long development of the tax benefit rule. Justice Stevens’ assertion that there is no suggestion in the early cases or from the early commentators that the rule could ever be applied in any case that did not involve a physical recovery, post, at 406-408, is incorrect. The early cases frequently framed the rule in terms consistent with our view and irreconcilable with that of the dissent. See Barnett v. Com missioner, 39 B. T. A. 864, 867 (1939) (“Finally, the present case is analogous to a number of others, where... [w]hen some event occurs which is inconsistent with a deduction taken in a prior year, adjustment may have to be made by reporting a balancing item in income for the year in which the change occurs”) (emphasis added); Estate of Block v. Commissioner, 39 B. T. A., at 341 (“When recovery or some other event which is inconsistent with what has been done in the past occurs, adjustment must be made in reporting income for the year in which the change occurs”) (emphasis added); South Dakota Concrete Products Co. v. Commissioner, 26 B. T. A., at 1432 (“[W]hen an adjustment occurs which is inconsistent with what has been done in the past in the determination of tax liability, the adjustment should be reflected in reporting income for the year in which it occurs”) (emphasis added). The reliance of the dissent on the early commentators is equally misplaced, for the articles cited in the dissent, like the early cases, often stated the rule in terms of inconsistent events.
Finally, Justice Stevens’ dissent relies heavily on the codification in § 111 of the exclusionary aspect of the tax benefit rule, which requires the taxpayer to include in income only the amount of the deduction that gave rise to a tax benefit, see n. 12, supra. That provision does, as the dissent observes, speak of a “recovery.” By its terms, it only applies to bad debts, taxes, and delinquency amounts. Yet this Court has held, Dobson v. Commissioner, 320 U. S. 489, 505-506 (1943), and it has always been accepted since, that § 111 does not limit the application of the exclusionary aspect of the tax benefit rule. On the contrary, it lists a few applications and represents a general endorsement of the exclusionary aspect of the tax benefit rule to other situations within the inclusionary part of the rule. The failure to mention inconsistent events in § 111 no more suggests that they do not trigger the application of the tax benefit rule than the failure to mention the recovery of a capital loss suggests that it does not, see Dobson, supra.
Justice Stevens also suggests that we err in recognizing transactional equity as the reason for the tax benefit rule. It is difficult to understand why even the clearest recovery should be taxed if not for the concern with transactional equity, see supra, at 377. Nor does the concern with transactional equity entail a change in our approach to the annual accounting system. Although the tax system relies basically on annual accounting, see Burnet v. Sanford & Brooks Co., 282 U. S., at 365, the tax benefit rule eliminates some of the distortions that would otherwise arise from such a system. See, e. g., Bittker & Kanner 268-270; Tye 350; Plumb 178, and n. 172. The limited nature of the rule and its effect on the annual accounting principle bears repetition: only if the occurrence of the event in the earlier year would have resulted in the disallowance of the deduction can the Commissioner require a compensating recognition of income when the event occurs in the later year.
Our approach today is consistent with our decision in Nash v. United States, 398 U. S. 1 (1970). There, we rejected the Government’s argument that the tax benefit rule required a taxpayer who incorporated a partnership under § 351 to include in income the amount of the bad debt reserve of the partnership. The Government’s theory was that, although § 351 provides that there will be no gain or loss on the transfer of assets to a controlled corporation in such a situation, the partnership had taken bad debt deductions to create the reserve, see § 166(c), and when the partnership terminated, it no longer needed the bad debt reserve. We noted that the receivables were transferred to the corporation along with the bad debt reserve. Id,., at 5, and n. 5. Not only was there no “recovery,” id., at 4, but there was no inconsistent event of any kind. That the fair market value of the receivables was equal to the face amount less the bad debt reserve, ibid.,
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_method
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I
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What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
THE PRESIDENTE WILSON. UNITED STATES v. PHELPS BROS. & CO.
No. 256.
Circuit Court of Appeals, Second Circuit.
March 14, 1932.
Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Delbert M. Tibbetts, of New York City, of counsel), for appellant.
George Z. Medalie, U. S. Atty., of New York City (Mary R. Towle, Asst. U. S. Atty., of New York City, of counsel), for the United States.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
L. HAND, Circuit Judge.
The libellant proved to the satisfaction of the judge that the ship had failed to prevent the landing of five of her complement of alien passengers at the place designated by immigration officers. In the view we take it will be unnecessary to consider the evidence by which these facts were established, because we think that on the record before' us there was no basis for a libel in the admiralty. The claimant is an Italian corporation, operating a line of steamers between New York and Italian ports; it “maintained an office in the City of New York, had in said office representatives upon whom process could have been served and was financially responsible.” So the judge found, though the evidence scarcely bears out the finding. However, the libellant has not complained, and we are to assume that it states the facts, perhaps as agreed upon. We understand by it that the company was doing such continuous business in New York as to make it “present,” in the sense that it was subject to civil process. The Eighth circuit has held generally that a foreign corporation may be brought to trial on a criminal prosecution by proper summons (John Gund Brewing Co. v. U. S., 204 F. 17); and several District Courts have done the same [U. S. v. Standard Oil Co. (D. C.) 154 F. 728; U. S. v. Va. Car. Chem. Co. (C. C.) 163 F. 66; U. S. v. Nat. Malleable & Steel Castings Co. (D. C.) 6 F.(2d) 40], These decisions were apparently approved in Albrecht v. U. S., 273 U. S. 1, 47 S. Ct. 250, 71 L. Ed. 505. Arguendo we shall not go so far, but will assume no more than that when “present,” it may be prosecuted; so far at any rate there is no doubt. In view of the fact that the issue appears not to have been fully litigated, we will, however, allow the libellant a new hearing to meet the issue, if it wishes.
Subdivision (a) of section ten, as amended by Act May 26, 1924, c. 190, § 27 (8 USCA § 146), makes guilty of a misdemeanor, punishable by imprisonment and a fine of between two hundred and a thousand dollars, any “person, owner, master, officer, or agent” who fails to prevent the landing of an alien. It then proceeds: “If in the opinion of the Secretary of Labor, it is impracticable or inconvenient to prosecute” the offender, he “shall be liable to a penalty of $1,000, which shall be a lien upon the vessel * * and such vessel shall be libeled.” In the case at bar the Assistant Commissioner General of Immigration wrote to the Commissioner of Immigration at New York: “It is felt that there is a violation of law and that it is impracticable or inconvenient to prosecute.” As is so often the case with us all, we are to suppose that an opinion followed upon this feeling, and we assume that a prima facie ease was made out for proceeding by libel. We do not think that the statute put that opinion beyond examination, in spite of the comprehensiveness of the phrase, “impracticable or inconvenient.” The option was given to meet those cases when an arrest of the ship was the only convenient way to pursue the offence. A foreign line without any permanent or continuous footing in the United States may be troublesome to reach; its ships come and go, leaving no responsible persons behind; unless they are caught in port their owners may escape altogether, or the authorities must wait their chance till the same master returns, or they happen to catch a guilty agent or officer. These impediments are not to be suffered, and the Secretary must decide how far the delays and doubts make prosecution inconvenient. But his choice does not depend merely upon a preference for a suit in the admiralty as against a criminal information, nor is he permitted to avoid a jury because of greater uncertainties of success. That would give him a choice incompatible with the primary purpose disclosed, that the persons at fault should be prosecuted.
Whether his decision is reviewable at all is another matter. We agree that it is conclusive until challenged; his acts enjoy the usual presumption that he has not exceeded his powers. That does not alone put them beyond judicial inquiry. When Congress intended so much, as for example in section 20 of the Act of 1917 (8 USCA § 156), it used the phrase, “at the option of the. Secretary,” though Lazzaro v. Weedin, 4 F.(2d) 704 (C. C. A. 9), suggests that there might be a reviewable abuse of even that discretion. The whole judicial review on habeas corpus of the power to exclude (section 17 of the Act of 1917 [8 USCA § 153]) is in the teeth of as peremptory language; that is, that the decision of the boards of special inquiry “shall be final.” So too is the power to deport (section 19 of the Act of 1917 [8 USCA § 155]). Indeed under section 19, in the ease of those who claim citizenship, the Supreme Court has taken the issue entirely out of the hands of the administrative officers. Ng Fung Ho v. White, 259 U. S. 276, 42 S. Ct. 492, 66 L. Ed. 938. Similarly, orders of the Postmaster General excluding matter from the mails, though “final,” are reviewable when they are without any support in the facts. American School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 23 S. Ct. 33, 47 L. Ed. 90.
On the other hand in Oceanic Steam Navigation Co. v. Stranahan, 214 U. S. 321, 29 S. Ct. 671, 53 L. Ed. 1013, the finding of the Secretary, based upon the certificate of his medical examiners that aliens were afflicted with contagious diseases whose existence could have been detected on embarkation, was held to be so absolute that the carrier might be deprived of a hearing. That was under section nine of the Act of 1903 (32 Stat. 1215), which gave the Secretary-power to impose the fine himself. The same rule no doubt applies to section six of the Quota Act of 1921, as added by Joint Resolution May 11, 1922, c. 187, 42 Stat. 540. Even so we have several times held that when the facts do not exist on which the power depends, the action is reviewable. Compagnie Francaise v. Elting (C. C. A.) 19 F.(2d) 773; U. S. v. Compagnie Generale Transatlantique (C. C. A.) 26 F.(2d) 195; Compagnie Generale Transatlantique v. U. S. (C. C. A.) 51 F.(2d) 1053; North German Lloyd v. Elting (C. C. A.) 54 F.(2d) 997. But this case does not arise under so stringent an enactment; Congress did not entrust the Secretary with power to impose fines for an escape of aliens; it provided alternative remedies for that offence, each judicial. His power was limited to a choice between these, based upon an objective standard; that choice was a part, so to say, of the procedure itself, and subject for that reason to such review as courts have over other procedural incidents. Even though his decision is irreviewable when the whole sanction is in his hands, we should assume the contrary, when he must resort to the courts.
The precise point appears never to have been ruled before, except in The Bremen (D. C.) 18 F.(2d) 960, a decision of the same judge who passed upon the case at bar. The query thrown out in The Nanking, 290 F. 769 (C. C. A. 9), has never been answered by the court which put it, and indicated no opinion at the time. The Coamo, 267 U. S. 220, 45 S. Ct. 237, 69 L. Ed. 582, does not touch it. Thus we are free to decide the ease upon principle, as we see it, and we hold that when it affirmatively appears that the owner is equally amenable to prosecution as to suit, there is no basis for choosing the second, and the Secretary’s opinion is not controlling. There are good antecedent reasons for so supposing. The duty imposed upon carriers was made absolute by the Act of 1917, and some latitude, in fact afforded by the upper and lower limits of punishment, became more imperative. Two hundred dollars is perhaps a drastic penalty when the carrier has done everything possible to pre vent the escape, but it is hardly oppressive; and Congress evidently meant to reserve the higher penalties for cases of neglect or connivance. But in a libel this cushion for the innocent is taken away (The Coamo, 267 U. S. 220, 45 S. Ct. 237, 69 L. Ed. 582); there is no latitude, and all must suffer alike. There is a plausible reason for this when the offender, though not at fault, keeps beyond reach; let him voluntarily subject himself to the ordinary processes, if he would raise his innocence to soften his punishment. But when he is here and so subject, and since the primary purpose was plainly to temper punishment in proper cases, it defeats the scheme to make the Secretary’s choice a fiat, independent of the actual facts. Indeed, it allows Him to oust the courts of just that jurisdiction which Congress intended them to have. We should have to find a stronger warrant in the language used than we can see, to exempt him from the scrutiny usual in such eases.
Decree reversed; cause remanded for further proceedings in conformity with the foregoing.'
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
|
songer_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES v. BOYER.
No. 8888.
United States Court of Appeals District of Columbia.
Argued May 22, 1945.
Decided July 9, 1945.
Mr. Bernard Margolius, Assistant United States Attorney, of Washington, D. C., with whom Messrs. Edward M. Curran, United States Attorney, and Charles B. Murray, John D. Lane, and John P. Burke, Assistant United States Attorneys, all of Washington, D. C., were on the brief, for appellant.
No appearance for appellee.
Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices.
EDGERTON, Associate Justice.
Appellee was convicted in the Municipal Court of obtaining money by false pretenses. There was ample evidence that he cashed a check which he knew to be worthless. He was cross-examined about previous convictions on other bad check charges, and was allowed to say in explanation that those charges were all due to a mistake of his secretary. But the court did not allow him to explain the circumstances of a previous conviction of embezzlement. For this reason the Municipal Court of Appc reversed his present conviction and ordered a new trial. The government appeals from this reversal.
The fact that a witness has been convicted of a crime may be shown, on the theory that it diminishes the value of his testimony. The question is whether he may then explain the circumstances of his conviction in order to mitigate its apparent effect on his credibility. We agree with the Municipal Court of Appeals that it is unfair to the witness to permit no explanation, particularly when he is at the same time a defendant in a criminal case and “the prior conviction, though permitted solely for the purpose of affecting the credibility of the defendant, may have some tendency in the minds of the jury to prove his guilt of the crime for which he is then on trial.” It may have such a tendency even when it has no actual bearing on his credibility. Whether the witness is or is not a defendant, if the opposing party introduces his previous convictions we think the witness should be allowed to make such reasonably brief “protestations on his own behalf as he may feel able to make with a due regard to the penalties of perjury.” Since not all guilty men are equally guilty and some convicted men are innocent, we think the witness should be allowed either to extenuate his ;gu'ilt or to assert his innocence of the previous charges.
The government contends that if an explanation or denial is permitted it •opens the way to a collateral inquiry which may be long and confusing. Fear of such a result has led some courts to exclude all evidence designed to mitigate or rebut the im-peachment which results from proof of a prior conviction. But there is respectable authority to the contrary. It is generally agreed that in order to save time and avoid ■confusion of issues, inquiry into a previous ■crime must be stopped before its logical possibilities are exhausted; the witness ■cannot call other witnesses to corroborate his story and the opposing party cannot call •other witnesses to refute it. The disputed ■question is whether inquiry into a previous crime should stop (1) with proof of the •conviction of the witness or (2) with any reasonably brief “protestations on his own behalf” which he may wish to make. The second alternative will seldom be materially more confusing or time-consuming than the first, if the trial judge duly exercises his “considerable discretion in admitting or rejecting evidence.” And we think the second alternative is more conducive to the ends of justice. The jury is not likely to give undue weight to an ex-convict’s uncorroborated assertion of innocence or of .extenuating circumstances. Just where to draw the line, in. order to avoid both unfairness to the witness and confusion of issues, is a question which must frequently arise. The correct rule in such cases, we think,, is to recognize a wide discretion in the trial judge. He observes the conduct of counsel, the reaction of the witness under examination, and the resulting effect upon the jury. In other words, he is aware as no appellate court can be of the courtroom psychology and can best determine whether particular testimony should or should not be received.
The trial court’s refusal in the present case to let appellee offer any explanation whatever of one conviction, while technically wrong, does not justify a reversal. It related to a different kind of offense from the one for-which appellee was on trial. There was convincing proof of his guilt of the bad check charge which was the only issue to be tried. The jury knew that he had previously been convicted on similar charges. He was permitted to explain all his convictions but one. In spite of this the jury did not believe his testimony. In view of the number of his offenses, it is scarcely believable that failure to explain only one of them could have affected the verdict. Accordingly the judgment of the trial court should have been affirmed. The judgment of the Municipal Court of Appeals is therefore reversed.
Reversed.
D.C.Code, 1940, § 22 — 1301.
Boyer v. United States, Mun.Ct.App.D.C., 40 A.2d 247.
D.C.Code 1940, § 14 — 305. This provision covers both felonies and misdemeanors. Bostic v. United States, 68 App.D.C. 167, 94 F.2d 636, certiorari denied 303 U.S. 635, 58 S.Ct. 523, 82 L.Ed. 1095.
Wigmore on Evidence, 3d ed., § 1117(3).
Cf. Borchard, Convicting the Innocent (1932).
Wagman v. United. States, 6 Cir., 269 F. 568, certiorari denied, 255 U.S. 572, 41 S.Ct. 376, 65 L.Ed. 792.
E. g., Lamoureux v. New York, N. H. & H. R. Co., 169 Mass. 338, 47 N.E. 1009 (Holmes, J.).
E. g., Wagman v. United States, supra, note 6; Donnelly v. Donnelly, 156 Md. 81, 143 A. 648.
Bracey v. United States, 79 U.S.App.D.C. 23, 142 P.2d 85, 89.
Question: What 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.
STATE STREET TRUST COMPANY et al., Executors, Appellants, v. UNITED STATES of America, Appellee.
No. 4097.
Circuit Court of Appeals, First Circuit.
Dec. 13, 1945.
J. A. Boyer, of Boston, Mass. (Nichols & Boyer, of Boston, Mass., of counsel), for appellants.
T. Carroll Sizer, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst, to Atty. Gen., of counsel), for appellee.
Before ALBERT LEE STEPHENS, MAHONEY, and WOODBURY, Circuit Judges.
PER CURIAM.
The judgment is affirmed on the general reasoning of the court below, 59 F.Supp. 467.
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_frivapp
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the appeals court level. That is, it is conceded that the trial court properly reached the merits, but the issue is whether, in spite of that concession, the appellant has a right to an appeals court decision on the merits (e.g., the issue became moot after the trial). The issue is: "Did the court conclude that it could not reach the merits of the case because the motion or appeal was frivolous or raised only trivial issues and was therefore not suitable for appellate review?" 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".
Edward EGGENBERGER, Appellant, v. ERIE RAILROAD COMPANY.
No. 11430.
United States Court of Appeals, Third Circuit.
Argued Feb. 23, 1955.
Decided March 4, 1955.
I. Reines Skier, Hawley, Pa., for appellant.
Joseph C. Kreder, Scranton, Pa. (Walter L. Hill, Jr., Edward W. Warren, of Harris, Warren, Hill & Henkelman, Scranton, Pa., on the brief), for appel-lee.
Before GOODRICH, KALODNER and STALEY, Circuit Judges.
PER CURIAM.
This is an appeal from a judgment for the defendant in a personal injury case. The case, which arose out of a grade crossing accident, was tried to the court who made full findings of fact. Those findings depend upon his acceptance of one line of testimony which was inconsistent with the evidence given for the plaintiff. This is the type of case where Rule 52(a), 28 U.S.C., is, by its own terms, especially applicable. The court’s findings are not clearly erroneous. There is no disputed proposition of law.
The judgment of the district court, 122 F.Supp. 481, will be affirmed.
Question: Did the court conclude that it could not reach the merits of the case because the motion or appeal was frivolous or raised only trivial issues and was therefore not suitable for appellate review?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_respond1_1_4
|
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 respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". Your task is to determine what subcategory of business best describes this litigant.
TEAMSTERS PENSION TRUST FUND OF PHILADELPHIA AND VICINITY, a multiemployer employee pension benefit plan, Charles J. Schaffer, Jr., a fiduciary, Plaintiffs-Appellants, v. CENTRAL MICHIGAN TRUCKING, INC., a Michigan corporation; Coast-To-Coast Transportation, Inc., a Michigan corporation; Transportation and Business Systems, Inc., a Michigan corporation; and Fuqua Industries, Inc., a Delaware corporation, Defendants-Appellees.
No. 87-2023.
United States Court of Appeals, Sixth Circuit.
Argued Aug. 12, 1988.
Decided Sept. 28, 1988.
Thomas W. Jennings, Sanford G. Rosen-thal, Sagot & Jennings, Philadelphia, Pa., Theodore Sachs (argued), Andrew Nickel-hoff, Detroit, Mich., for plaintiffs-appellants.
Jacob M. Yellin, John Ohlweiler, Simpson, Thacher & Bartlett, New York City, Kenneth Edgar, Jr. (argued), Thomas P. Hogan, Rhoades, McKee, Boer, Goodrich & Titta, Grand Rapids, Mich., for defendants-appellees.
Before KENNEDY and WELLFORD, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
WELLFORD, Circuit Judge.
This appeal presents an interesting and complex issue of statutory interpretation regarding a predecessor employer’s withdrawal liability under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., as amended by the Multiemployer Pension Plan Amendments Act of 1980 (“MPPAA”), 29 U.S.C. § 1381 et seq. The district court held that following a change in corporate structure that is not a sham and that does not incur contemporaneous withdrawal liability, the predecessor employer cannot be assessed withdrawal liability for the subsequent withdrawal or failure of the successor employer.
The material facts are not disputed. Interstate Motor Freight Systems, Inc. (“Interstate”), incorporated in Michigan in 1932, was, until its bankruptcy in 1984, a common carrier providing trucking services. In 1968, defendant-appellee Fuqua Industries, Inc. (“Fuqua”), acquired one hundred percent of Interstate’s outstanding common stock. Fuqua held Interstate as a wholly owned subsidiary from September 1968 to November 1, 1980. On September 29,1980, Fuqua’s Board of Directors authorized the distribution of Interstate common stock to Fuqua common stock holders. This distribution, commonly known as a stock “spin-off,” became effective as of November 1,1980. Interstate thus became an independent, publicly held corporation.
During the period of Fuqua’s ownership of Interstate, the latter was obligated under collective bargaining agreements to make contributions on behalf of certain of its employees to plaintiff-appellant Teamsters Pension Trust Fund of Philadelphia and Vicinity (“the Fund”). Interstate’s obligation continued after the spin-off, and Interstate continued to make uninterrupted contributions until December 11, 1984, when Interstate ceased operations due to serious financial problems.
In early 1985, the Fund assessed withdrawal liability pursuant to 29 U.S.C. §§ 1381 and 1399 against Interstate, on the grounds that Interstate had completely ceased contributions to the Fund. The Fund also assessed Fuqua for that portion of the withdrawal liability attributable to the pre-1980 period of Fuqua’s and Interstate’s common control, and this latter assessment is at issue on appeal. Fuqua requested the Fund to review the factual and legal bases of the assessment, and in April 1986, the Fund reasserted its original assessment of withdrawal liability.
In July 1985, the Fund commenced this action in district court against Fuqua, alleging that, as a matter of law, Fuqua was liable to the Fund for payment of that portion of Interstate’s withdrawal liability attributable to the pre-spin-off period (1968-1980) when Fuqua and Interstate were under common control. The second count alleged that the 1980 spin-off had as its “principal purpose” the evasion or avoidance of withdrawal liability under 29 U.S.C. § 1392(c). This second issue is now under submission to an arbitrator.
Following Fuqua’s answer, the Fund moved for partial summary judgment on the first count, and for remand to statutory arbitration as to the second. Fuqua moved for summary judgment as to both counts. The district court granted summary judgment for Fuqua on the first count, and remanded count two for arbitration. The district court concluded that the statutory language of ERISA/MPPAA does not provide for the subsequent imposition of withdrawal liability on a predecessor employer following a successful change in corporate structure that was accomplished without triggering contemporaneous withdrawal liability, i.e., where payments were continued after the change. Here the Fund contends that withdrawal liability must be imposed on Fuqua at the subsequent time when Interstate, the successor employer, has withdrawn from the plan. The Fund therefore appeals the district court’s adverse judgment.
The district court succinctly stated the issue presented to it and now to this court on appeal:
It is plaintiffs’ contention that to remain consistent with the spirit of MPPAA, any business which was an employer or member of a control group as defined under the Act must be held accountable for a contingent withdrawal liability for the time period during which it was an employer or member of the control group. Plaintiffs suggest that this “accrued” withdrawal liability does not become payable immediately upon a change of corporate structure, rather it is deferred as long as the new corporate entity contributes to the pension plan.
It is not disputed that Fuqua’s 1980 spinoff of Interstate stock as a dividend to Fuqua’s shareholders was a “change in corporate structure” under 29 U.S.C. § 1398. We agree with the analysis of the statute, as it is read in conjunction with other pertinent provisions of ERISA and. MPPAA, set out by Judge Miles in his opinion and order dated September 21, 1987. After the “change in corporate structure” involved, Interstate did assume the “original employer” position previously held by Fuqua, of which parent concern it was a wholly owned subsidiary prior to 1980. We therefore affirm the conclusion reached by the district court:
Terming the spun-off company [Interstate] as the “original employer” clearly shows that under MPPAA the new employment entity will be deemed the original employer, consequently only that employer and any control group to which it belongs at the time of withdrawal will be responsible for withdrawal liability.
We find Judge Miles’ reasoning persuasive in his additional conclusion that 29 U.S.C. § 1392(c) was envisioned by Congress as the principal means of preventing an unscrupulous employer from dumping a distressed subsidiary in order to evade or avoid liability under the statutory scheme. Whether or not Fuqua acted with such a motive is a question now before an arbitrator, and we, of course, offer no opinion on that question.
Finally, we agree with the district court’s further views after analysis of the statutory scheme as a whole:
There is no congressional mandate to engage in legal gymnastics in order to guarantee pension plans at all costs. The courts have declined to impose withdrawal liability on corporate officers and shareholders by piercing the corporate veil. Connors v. P & M Coal Co., 801 F.2d 1373 (D.C.Cir.1986); Solomon v. Klein, 770 F.2d 352 (3rd Cir.1985); or to apply the statute in a nonsensical fashion in order to assure full payment of withdrawal liability. In re Challenge Stamping and Porcelain Co., 719 F.2d 146 (6th Cir.1983).
We affirm, then, generally for the reasons set forth fully in the district court’s opinion and based on the authority relied upon therein. We address, however, several additional contentions raised on appeal.
The legislative history of MPPAA supports the conclusion that the common control group “employer” ceases to exist when a parent corporation sells the stock of a wholly owned subsidiary:
[I]f P Corporation owns 100 percent of the stock of S Corporation, a subsidiary that has an obligation to contribute to a multiemployer plan on behalf of its employees, the controlled group consisting of P and S would be considered an employer with an obligation to contribute to the plan. If P sells all of its interest in S to an unrelated party, the controlled group consisting of P and S would cease to exist. However, if S continues to have an obligation to contribute to the plan, no withdrawal would be considered to have taken place merely because of the change in ownership of S.
H.R.Rep. No. 96-869, Part II, 96th Cong., 2d Sess. 16 (1980), reprinted in 1980 U.S. Code Cong. & Admin.News 3005-06 (emphasis added). To the same effect, see Pension Benefit Guaranty Corporation Opinion #85-29 (December 5, 1985).
The Fund characterizes Fuqua’s and the district court’s reading of § 1398 as overly restrictive and asserts that because MPPAA does not expressly cut off the withdrawal liability of a member of a former control group “employer” upon a change in corporate structure, the liability survives in a contingent form. The Fund reasons that this result comports with the congressional concerns regarding employer withdrawal that prompted MPPAA’s enactment. The Fund specifically relies on language in a Senate Labor Committee report on MPPAA:
The Committee intends that the term “employer” be further construed in a manner consistent with the bill and so as not to impose withdrawal liability for changes in the form of an employer if the plan is adequately protected against reductions in its contribution base and impairment of its ability to collect contributions or withdrawal liability.
Summary and Analysis of S. 1076 (S. Labor Comm.), reprinted in 310 Pens.Rep. (BNA) Special Supplement 81, 82 (Sept. 29, 1980) (emphasis added). Fuqua counters, however, by claiming that its position is equally consistent with this statement of congressional concern because under § 1398 withdrawal will occur and withdrawal liability will be assessed upon a change in the corporate structure of a control group employer unless plan contributions continue uninterrupted following the change. Fuqua thus asserts that § 1398 expressly and adequately protects a plan's integrity without implying the continued contingent liability of a predecessor employer.
In addition to its argument that § 1398 supports its theory of a predecessor employer’s accrued contingent withdrawal liability that becomes due when the successor employer withdraws from the plan, the Fund contends that the concept of accruing withdrawal liability finds support in ERISA’s statutory methodology for calculating withdrawal liability, in case law, and in the tax code and Treasury regulations regarding the accrual of tax liability for control group corporations. According to the Fund, the “presumptive method” of calculating withdrawal liability provided by 29 U.S.C. § 1391(b)(1) measures withdrawal liability in terms of annual changes in the plan’s unfunded vested liabilities and amortizes each annual segment over a twenty-year period. Thus, the Fund likens withdrawal liability to a debt that arises in annual increments and attaches to each business under common control with the contributing business during that year. As a result, the Fund would have us conclude that when common control is severed, each business in the group carries with it a contingent liability. The cases cited by the Fund in support of its contentions all arose in the context of bankruptcy proceedings and involved determinations as to whether withdrawal liability, as an indebtedness arising from ERISA/MPPAA, was to be characterized as an administrative expense. We find these contentions to be unpersuasive, and the case authority not to be controlling on the question before us.
Finally, the Fund argues that the control group tax liability attribution provisions of the Internal Revenue Code support an accrual theory of withdrawal liability because ERISA/MPPAA and the Internal Revenue Code are in pari materia and should be interpreted consistently. In addition, ERISA’s provision setting forth the control group employer concept expressly states that implementing regulations be “consistent and coextensive with” Treasury regulations promulgated under 26 U.S.C. § 414(c), the tax code’s control group provision, 29 U.S.C. § 1301(b)(1). The Fund points to Treasury regulations under which the termination of common control does not relieve an affiliate of a control group of liability for the group’s entire tax arising during affiliation. See 26 C.F.R. §§ 1.1502-6(b), 1.1502-77(b). In addition, the Fund asserts that treating Fuqua as subject to contingent withdrawal liability after the 1980 spin-off parallels the comparable tax treatment of a spin-off transaction under -26 U.S.C. § 355, which treats the resulting entities as a continuation of the former entity.
Again, we find that the Fund’s comparison of ERISA/MPPAA’s successorship rules to the Internal Revenue Code’s sue-eessorship rules is not persuasive. MPPAA expressly incorporates the Internal Revenue Code’s control-group provisions only to the extent that they define a control group of corporations. 29 U.S.C. § 1301(b)(1). If Congress had intended to engraft onto the pension statute the tax provisions regarding successorship following the termination of common control, it could have expressly done so. See United Food and Commercial Workers Union v. Progressive Supermarkets, 644 F.Supp. 633, 638 (D.N.J.1986). Absent such an express provision, tax precepts governing successorship are not dispositive of the meaning of MPPAA’s successorship provision. Cf. United Steelworkers v, Harris & Sons Steel Co., 706 F.2d 1289, 1298-99 (3d Cir.1983).
In sum, a critical review of the Fund’s arguments that Fuqua accrued contingent withdrawal liability prior to the 1980 spinoff, which liability was triggered upon Interstate’s withdrawal from the plan four years later, demonstrates the inherent weakness of the arguments: they fail to show that Congress intended a member of a control group employer to remain contingently liable for the withdrawal of a successor employer well after the successful accomplishment of a change in corporate structure pursuant to 29 U.S.C. § 1398. Absent a showing of such congressional intent, there is no reason to infer such liability in the absence of express statutory indications. In ERISA/MPPAA, Congress provided a comprehensive set of rules governing pension benefits and employer liability; we should apply the statutory language, not create new rules nor apply additional liabilities. See Central States, Southeast and Southwest Areas Pension Fund v. Bellmont Trucking Co., 788 F.2d 428, 433 (7th Cir.1986).
We believe that Banner Industries, Inc. v. Central States, Southeast and Southwest Areas Pension Fund, 657 F.Supp. 875 (N.D.Ill.1987) and In re Consolidated Litigation Concerning International Harvester’s Disposition of Wisconsin Steel, 681 F.Supp. 512, 526 (N.D.Ill.1988), although not entirely analogous, support the principles expressed by the district court and those adopted herein. Also consistent with our conclusion is Godchaux v. Conveying Techniques, Inc., 846 F.2d 306 (5th Cir.1988):
Although it is true that withdrawal liability is calculated according to the pension plan’s pre-existing unfunded vested liability, that unfunded vested liability does not completely define or determine withdrawal liability. ERISA does not impose withdrawal liability on every employer that belongs to a pension plan that has an unfunded vested liability.
... The argument that withdrawal liability is merely a method of imposing an already determined unfunded vested liability is conceptually faulty and unsupported by the case law.
Id. at 310, 313. Our decision gives due consideration to the Fund’s assessment of withdrawal liability against Fuqua, but we do not find the Fund’s reliance on Treasury regulations to be controlling here. (They may be pertinent to the definition of common control employers, under 29 U.S.C. § 1301(b)(1), but not to the existence or cessation of withdrawal liability of such an employer). What is here involved is a matter of statutory interpretation, and therefore we are not required to give a deferential view to the Fund’s statutory construction, a matter properly for the courts to decide. By contrast, we defer to the Fund’s assessment when it is implementing a particular plan’s provisions or determining benefits under the plan’s requirements. See, e.g., Moore v. Reynolds Metals Co. Retirement Program, 740 F.2d 454, 457 (6th Cir.1984), cert. denied, 469 U.S. 1109, 105 S.Ct. 786, 83 L.Ed.2d 780 (1985).
For the reasons given by the district court and for the additional reasons set out herein, we affirm the judgment denying the Fund’s assessment of withdrawal liability against Fuqua under Count I.
. Interstate filed a petition seeking Chapter 11 reorganization under the Bankruptcy Code on April 11, 1984. On December 28, 1984, this proceeding was converted to a liquidation proceeding.
. The complaint also named as defendants three other corporations that were either subsidiaries of or related to Interstate. All three are now insolvent and defunct, and none of the three responded to the Fund's complaint.
.The issue remanded for arbitration is not before us on appeal.
. The pertinent parts of 29 U.S.C. § 1398 provide:
Notwithstanding any other provision of this part, an employer shall not be considered to have withdrawn from a plan solely because—
(1) an employer ceases to exist by reason of—
(A) a change in corporate structure described in section 1362(d) of this title, or
(B) a change to an unincorporated form of business enterprise,
if the change causes no interruption in employer contributions or obligations to contribute under the plan, ...
For purposes of this part, a successor or parent corporation or other entity resulting from any such change shall be considered the original employer.
. 29 U.S.C. § 1392(c) provides:
If a principal purpose of any transaction is to evade or avoid liability under this part, this part [regarding employer withdrawals] shall he applied (and liability shall be determined and collected) without regard to such transaction.
. See Trustees of Amalgamated Insurance Fund v. McFarlin's, Inc., 789 F.2d 98, 103-04 (2d Cir.1986); In re Pulaski Highway Express, Inc., 57 B.R. 502, 507 (Bankr.M.D.Tenn.1986); In re Kessler, Inc., 23 B.R. 722, 725-26 (Bankr.S.D.N.Y.1982), aff'd, 55 B.R. 735 (S.D.N.Y.1985).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". What subcategory of business best describes this litigant?
A. railroad
B. boat, shipping
C. shipping freight, UPS, flying tigers
D. airline
E. truck, armored cars
F. other
G. unclear
Answer:
|
sc_lcdisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
WARREN v. UNITED STATES.
No. 87.
Argued January 2, 1951.
Decided February 26, 1951.
Saul Sperling and Charles A. Ellis argued the cause and filed a brief for petitioner.
Leavenworth Colby argued the cause for the United States. With him on the brief were Solicitor General Perlman, Acting Assistant Attorney General Clapp, James L. Morrisson and Samuel D. Slade.
Walter X. Connor and Vernon Sims Jones filed a brief for the United States Lines Company, as amicus curiae, urging affirmance.
Mr. Justice Douglas
delivered the opinion of the Court.
Petitioner seeks in this suit maintenance and cure from the United States, as owner of S. S. Anna Howard Shaw. Petitioner was a messman who went ashore on leave while the vessel was at Naples in 1944. He and two other members of the crew first did some sightseeing. Then the three of them drank one bottle of wine and went to a dance hall, where they stayed an hour and a half, dancing. There was a room adjoining the dance hall that overlooked the ocean. French doors opened onto an unprotected ledge which extended out from the building a few feet. Petitioner stepped to within 6 inches of the edge and leaned over to take a look. As he did so, he took hold of an iron rod which seemed to be attached to the building. The rod came off and petitioner lost his balance and fell, breaking a leg.
The District Court awarded maintenance. 75 F. Supp. 210, 76 F. Supp. 735. The Court of Appeals disallowed it. 179 F. 2d 919. The case is here on certiorari.
The Shipowners’ Liability Convention, proclaimed by the President Sept. 29, 1939, 54 Stat. 1693, provides in Art. 2:
“1. The shipowner shall be liable in respect of— “(a) sickness and injury occurring between the date specified in the articles of agreement for reporting for duty and the termination of the engagement;
“(b) death, resulting from such sickness or injury.
“2. Provided that national laws or regulations may make exceptions in respect of:
“(a) injury incurred otherwise than in the service of the ship;
“(b) injury or sickness due to the wilful act, default or misbehaviour of the sick, injured or deceased person;
“(c) sickness or infirmity intentionally concealed when the engagement is entered into.”
Petitioner’s argument is twofold. He maintains first that under paragraph 1 a shipowner’s duty to provide maintenance and cure is absolute and that the exceptions specified in paragraph 2 are not operative until a statute is enacted which puts them in force. He argues in the second place that, even if paragraph 2 is operative without an Act of Congress, his conduct was not due to a “wilful act, default or misbehaviour” within the meaning of that paragraph. An amicus curiae argues that the injury was not received “in the service of the ship” within the meaning of Paragraph 2 (a) of Art. 2.
There is support for petitioner’s first point in the concurring opinion of Chief Justice Stone in Waterman Steamship Corp. v. Jones, 318 U. S. 724, 738. But we think the preferred view is opposed. Our conclusion is that the exceptions permitted by paragraph 2 are operative by virtue of the general maritime law and that no Act of Congress is necessary to give them force.
The language of paragraph 2, in its ordinary range of meaning, easily permits that construction. It is “national laws or regulations” which may make exceptions. The term law in our jurisprudence usually includes the rules of court decisions as well as legislative acts. That was held in Erie R. Co. v. Tompkins, 304 U. S. 64, to be true of the phrase “the laws of the several states” as used in the first Judiciary Act. 1 Stat. 73, § 34. No reason is apparent why a more restricted meaning should be given “national laws or regulations.” The purpose of the Convention would not be served by the narrow meaning. This Convention was a product of the International Labor Organization. Its purpose was to provide an international system of regulation of the shipowner’s liability. That international system was aimed at providing a reasonable average which could be applied in any country. We find no suggestion that it was designed to adopt a more strict standard of liability than that which our maritime law provides. The aim indeed was not to change materially American standards but to equalize operating costs by raising the standards of member nations to the American level. If the Convention was designed to make absolute the liability of the shipping industry until and unless each member nation by legislative act reduced it, we can hardly believe some plain indication of the purpose would not have been made. Much of this body of maritime law had developed through the centuries in judicial decisions. To reject that body of law and start anew with a complete code would be a novel and drastic step. Under our construction the Convention provides a reasonable average for international application. The definition of the exceptions itself helps provide the average, leaving the creation of the exceptions to any source of law which the member nations recognize. That view serves the purpose of the Convention and conforms to the normal meaning of the words used. Our conclusion is that both paragraph 1 and paragraph 2 of Art. 2 state the standard of liability which legislative and decisional law define in particularity.
The District Court held that petitioner’s degree of fault did not bar a recovery for maintenance and cure. The Court of Appeals thought otherwise. The question is whether the injury was “due to the wilful act, default or misbehaviour” of petitioner within the meaning of Art. 2, paragraph 2 (b) of the Convention. The standard prescribed is not negligence but wilful misbehavior. In the maritime law it has long been held that while fault of the seaman will forfeit the right to maintenance and cure, it must be “some positively vicious conduct — such as gross negligence or willful disobedience of orders.” The Chandos, 6 Sawy. 544, 549-550; The City of Carlisle, 39 F. 807, 813; The Ben Flint, 1 Biss. 562, 566. And see Reed v. Canfield, 1 Sumn. 195, 206. In Aguilar v. Standard Oil Co., 318 U. S. 724, 731, we stated the rule as follows : “Conceptions of contributory negligence, the fellow-servant doctrine, and assumption of risk have no place in the liability or defense against it. Only some wilful misbehavior or deliberate act of indiscretion suffices to deprive the seaman of his protection.”
The exception which some cases have made for injuries resulting from intoxication (see Aguilar v. Standard Oil Co., supra, p. 731, notes 11 and 12) has no place in this case. As the District Judge ruled, the amount of wine consumed hardly permits a finding of intoxication. Petitioner was plainly negligent. Yet we would have to strain to find the element of wilfulness or its equivalent. He sought to use some care when he looked down from the small balcony, as evidenced by his seizure of the iron bar for a handhold. His conduct did not measure up to a standard of due care under the circumstances. But we agree with the District Court that it was not wilful misbehavior within the meaning of the Convention.
Finally it is suggested that the injury did not occur “in the service of the ship,” as that term is used in paragraph 2 (a) of Art. 2 of the Convention. We held in Aguilar v. Standard Oil Co., supra, that maintenance and cure extends to injuries occurring while the seaman is departing on or returning from shore leave though he has at the time no duty to perform for the ship. It is contended that the doctrine of that case should not be extended to injuries received during the diversions of the seaman after he has reached the shore. Mr. Justice Rutledge, speaking for the Court in the Aguilar case, stated the reasons for extending maintenance and cure to shore leave cases as follows (pp. 733-734):
“To relieve the shipowner of his obligation in the case of injuries incurred on shore leave would cast upon the seaman hazards encountered only by reason of the voyage. The assumption is hardly sound that the normal uses and purposes of shore leave are 'exclusively personal' and have no relation to the vessel’s business. Men cannot live for long cooped up aboard ship, without substantial impairment of their efficiency, if not also serious danger to discipline. Relaxation beyond the confines of the ship is necessary if the work is to go on, more so that it may move smoothly. No master would take a crew to sea if he could not grant shore leave, and no crew would be taken if it could never obtain it. . . . In short, shore leave is an elemental necessity in the sailing of ships, a part of the business as old as the art, not merely a personal diversion.
“The voyage creates not only the need for relaxation ashore, but the necessity that it be satisfied in distant and unfamiliar ports. If, in those surroundings, the seaman, without disqualifying misconduct, contracts disease or incurs injury, it is because of the voyage, the shipowner’s business. That business has separated him from his usual places of association. By adding this separation to the restrictions of living as well as working aboard, it forges dual and unique compulsions for seeking relief wherever it may be found. In sum, it is the ship’s business which subjects the seaman to the risks attending hours of relaxation in strange surroundings. Accordingly, it is but reasonable that the business extend the same protections against injury from them as it gives for other risks of the employment.”
This reasoning is as applicable to injuries received during the period of relaxation while on shore as it is to' those received while reaching it. To restrict the liability along the lines suggested would be to whittle it down “by restrictive and artificial distinctions” as attempted in the Aguilar case. We repeat what we said there, “If leeway is to be given in either direction, all the considerations which brought the liability into being dictate it should be in the sailor’s behalf.” 318 U. S. at 735.
Reversed.
Petitioner sued the United States as owner and American South African Line, Inc. as the general agent and operator. The District Court dismissed the libel as to the United States and held the general agent liable under Hust v. Moore-McCormack Lines, 328 U. S. 707. During the pendency of the appeal by the general agent and the cross-appeal by petitioner, Fink v. Shepard S. S. Co., 337 U. S. 810, was decided. Accordingly the decree against the general agent was reversed and the Court of Appeals considered the case on the merits against the United States.
Chief Justice Stone relied on the report of the Secretary of State to the President on the need for legislation implementing the Convention. The Secretary said in part: “Many of the provisions of the convention are considered to be self-executing, and there would appear to be no need to repeat verbatim the language of the convention in a statute to make it effective. Some of the articles of the convention, however, after stating the general rule, provide that nation^ .laws may make specified exceptions thereto. If this Government is to be excepted from certain obligations of the convention or alterations in our present practice, it is necessary to do so affirmatively by statute.” H. R. Rep. No. 1328, 76th Cong., 1st Sess. 6.
The Secretary had the following to say about Article 2: “Section 4 follows the exceptions in article 2 of the convention which sets forth the risks covered in the entire convention. . . . Paragraph 1 of article 2 of the convention was not incorporated in the bill because of the belief (1) that it is self-executing in that it establishes liability, although no definite amount is provided; and (2) that it will not be held by the courts to conflict with present law in this country.” Id., p. 6.
The implementing legislation was passed by the House, 84 Cong. Rec. 10540, but not by the Senate. See Hearings, Subcommittee of the Committee on Commerce, U. S. Senate, on H. R. 6881, 76th Cong., 3d Sess.; S. Doc. 113, 77th Cong., 1st Sess.; 87 Cong. Rec. 7434.
See Fried, Relations Between the United Nations and the International Labor Organization, 41 Am. Pol. Sci. Rev. 963; Dillon, International Labor Conventions (1942); Shotwell, The Origins of the International Labor Organization (1934).
The United States became a member of the International Labor Organization on August 20, 1934. See U. S. Treaties, Treaty Series, No. 874.
See International Labor Conference, Proceedings, Thirteenth Sess. (1929), 131.
The report of the Secretary of State recommending ratification of the Convention emphasized that the treaty (1) would not materially change American legal standards and (2) would raise standards of member nations to the American level and thus equalize operating costs. S. Exec. Rep. 8, 75th Cong., 3d Sess. 3.
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_respond1_1_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
Claudie R. LOVLESS, Appellant, v. EMPLOYERS' LIABILITY ASSURANCE CORPORATION, Limited, Appellee.
No. 13893.
United States Court of Appeals, Fifth Circuit.
Jan. 28, 1955.
Raymond H. Kierr, New Orleans, La., for appellant.
René H. Himel, Jr., Malcolm W. Monroe, and Deutsch, Kerrigan & Stiles, New Orleans, La., for appellee.
Before HUTCHESON, Chief Judge, BORAH, Circuit Judge, and DAWKINS, District Judge.
PER CURIAM.
On October 19, 1950, the Tug “Lake-wyn” was operated by Jahncke Service, Inc. for delivering clam shells in the New Basin Canal at New Orleans. Claudie R. Lovless was employed by the company as deckhand on its towboat. About dusk that day he was injured when working aboard the barges which were loaded with shells and were being towed by the tug.
Lovless brought this action jointly against the vessel’s owner and its liability underwriter. His damage suit is based upon the Jones Act, 46 U.S.C.A. § 688, and upon the Maritime Law. He claims also maintenance and cure in a second cause of action, under the general Maritime Law. There is diversity of citizenship between all parties. Plaintiff relies on Section 655 of the Louisiana Insurance Code, Title 22, LSA-R.S., to authorize his direct suit against the insurance company.
The insurance policy sued upon is a “standard workmen’s compensation and employers’ liability policy,” in the amount of $15,000.00 to $25,000.00, issued at New Orleans, Louisiana by the Employers’ Liability Assurance Corp., Ltd. to Jahncke Service, Inc. with respect to personal injuries sustained by its employees. The policy contains a maritime endorsement making the damage coverage for employees’ injuries applicable to maritime employment. The insurance company is required to defend the insured and to pay all court costs and expenses. The policy contains the usual provision which precludes payment to anyone until the insured shall have been held liable to pay damages; and it further provides that a state statute shall control over any provision in the insurance policy which is inconsistent with the statute.
The Employers’ Liability Assurance Corporation, Ltd. moved in the trial court for dismissal and for summary judgment as to it, on the grounds that: (1) jurisdiction is lacking because the Jones Act creates no direct action against the underwriter of a seaman’s employer; (2) the Direct Action provision, § 655, of the Louisiana Insurance Code, cannot constitutionally apply to marine insurance because it would infringe upon the exclusive Federal jurisdiction over maritime matters; and (3) the insurance contract excludes liability for maintenance and cure.
The District Court granted the motion for summary judgment on October 3, 1951, and dismissed the action as to the Employers’ Liability Assurance Corporation, Ltd., and plaintiff brings this appeal.
Here, urging upon us that, except that, in the Cushing case, there was a limitation of liability proceeding and there is none here, the two cases are in substance the same, appellant insists that the law as decided in that case requires the reversal of the judgment in this one.
We agree that this is so. The judgment is accordingly reversed and the cause is remanded for further and not inconsistent proceedings.
. This policy, No. WC-750185, Clause 1 (b), stipulates “to indemnify this employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees as are legally employed wherever such injuries may be sustained within the territorial limits of the United States of America or the Dominion of Canada.”
. This was before the decision of this court, on July 31, 1952, in the case of Cushing v. Maryland Casualty Co., 5 Cir., 198 F.2d 536, reversing the judgment and decision of the district court reported in Cushing v. Texas & P. Ry. Co., D.C., 99 F.Supp. 681.
. Cushing v. Maryland Casualty Co., 5 Cir., 198 F.2d 536; Maryland Casualty Co. v. Cushing, 347 U.S. 409, 74 S.Ct. 608, 98 L.Ed. 306.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_counsel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America v. Jerome A. STEVENS, Appellant.
No. 11519.
United States Court of Appeals Third Circuit.
Submitted May 20, 1955.
Decided Aug. 4, 1955.
Jerome A. Stevens, pro se.
Raymond Del Tufo, Jr., U. S. Atty., Newark, N. J., for appellee.
Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
KALODNER, Circuit Judge.
Two relatively simple issues are presented for our determination but their disposition inescapably entails the tedious unravelling of a tangled skein of procedure both in the court below and here.
It appears that on May 14, 1954, the appellant, Jerome A. Stevens, following a jury verdict of guilty, was sentenced by the United States District Court for the District of New Jersey to imprisonment for twenty-five years on two counts of an indictment charging bank robbery, based on 18 U.S.C. § 2113(a, d). Stevens had been represented at his trial by a court-appointed attorney, William D. McGlynn, Esq.
Subsequent to his sentencing, Stevens pro se, on August 23, 1954, filed an “Affidavit in forma pauperis, in support of Motion requesting Authorization for records * * * to be furnished without cost.” The “records” sought included a transcript of the trial.
On September 8, 1954, before disposition of this motion, Joseph F. Walsh, Esq. (who apparently had been designated by the District Court as Stevens’ counsel in place of McGlynn), filed “Notice of Motion” stating that he would, on September 27th, move the court for the setting of a date to hear a motion to vacate and set aside Stevens’ sentence, under 28 U.S.C. § 2255.
On September 20th, Stevens interposed another “Motion and Supporting Affidavit to Furnish Defendant Certain Records at Expense of the United States” stating therein that he required the trial-transcript in order to prepare and file a motion to vacate sentence. In this paper Stevens stated that his motion to vacate would be based on these contentions: he had not been adequately represented by his court-appointed trial counsel; he had not been properly arraigned; he had not been present at every stage of the proceeding, etc. etc.
On October 11th, Stevens filed “Notice of Election to Act as Own Attorney, etc.” In it he stated that he had notified Walsh that he did not desire to have him as his counsel; that he had not been notified by the Court that it had appointed Walsh to act as his counsel; that he repudiated Walsh’s representation and particularly Walsh’s “Notice of Motion” (to vacate sentence) of September 8th.
The docket of the District Court discloses that on October 25th there was “Hearing on motion to vacate sentence. Ordered Mr. Walsh relieved of his assignment as counsel, Decision reserved.” The docket further discloses that on October 27th the District Court “Ordered minutes of 10-25-54 amended to reflect that only proceeding before the Court on that date was application by Joseph F. Walsh to be relieved as counsel for defendant, which application was granted.”
On October 28th, the District Court filed “Opinion and Order” which purported to dispose of a motion by Stevens to vacate sentence and another motion for a transcript of the record without cost.
On November 15, 1954, Stevens filed “Motion to Amend Order of October 28, 1954” asserting that the court had “erroneously” stated therein that he had filed a motion to vacate sentence and, declaring that the only motion before the court has been his motion for a transcript of the record without cost.
On November 17, 1954, the District Court filed “Memorandum and Order” specifically “denying the application of the defendant * * * for a copy of the transcript of the record of his trial, at the expense of the United States.” The Court however, made no disposition of Stevens’ application to amend its Order of October 28th by striking from it all reference to a motion to vacate sentence.
This was the posture of the record below when, on December 10th the District Court ordered that leave be granted to Stevens “to file a notice of appeal from the orders of October 28th, 1954 and November 17th, 1954” without payment of costs. On the same day the Deputy Clerk of the District Court filed “Notice of Appeal” from the Orders of October 28th and November 17th, of his own accord, as a protective measure.
To add filip to this situation, Stevens on December 20th filed his own “Notice of Appeal” limiting it to the District Court’s order of November 17th, which related only to the denial of his request for a trial transcript, and further, on December 28th, Stevens filed “Motion to Amend Notice of Appeal filed December 10, 1954, etc.” (the Deputy Clerk’s Appeal) by deleting that part of the Notice relating to the Order of October 28th which had denied motion to vacate sentence.
On January 3rd, 1955, the District Court entered an order denying Stevens’ “Motion to Amend Notice of Appeal filed December 10th.”
First, as to the denial of the 'motion for a transcript of the trial:
The District Court premiséd its denial of this motion, in its October 28th “Opinion and Order”' (unreported), on the limited ground that “nothing in-the applicant’s moving papers- indicates the necessity for same.”
This premise, however, falls of its own weight because Stevens had urged several grounds for relief whose existence or non-existence could have been established only by the transcript of the record— such as failure of his counsel to object to a “patently erroneous charge” — and the record transmitted-to this court fails to demonstrate that a transcript was ever made of the trial proceedings.
While the District Court did not do so we must, however, direct our consideration to the fundamental question as to whether statutory authority exists' for the furnishing of a transcript' at government expense under the circumstances here- presented.
The relevant statutory provision is 28 U.S.C. 753(f) which provides:
“* * * Fees for transcripts furnished in criminal or habeas corpus proceedings to persons .allowed to sue, defend, or appeal in forma pauperis shall be paid by the United' States out of money appropriated for that purpose.” (Emphasis supplied.)
We are of the opinion that the language of section 753(f) makes it clear that a transcript may be furnished at government expense to one authorized to appeal in forma pauperis only with respect to the proceedings involved in the judgment or order appealed from. In other words, the government is authorized to pay for a transcript only to prosecute an appeal in forma pauperis from a proceeding of which the transcript is a record. Stevens has moved for a transcript for the purpose, not of making an appeal, but of instituting a collateral attack.
It is clear that under section 753(f) a transcript of Stevens’ original trial could have been furnished him at government expense for the purpose of taking an appeal to this court from his conviction, if he had been authorized to take the appeal in forma pauperis. It is equally clear that a motion under section 2255, being a collateral attack, is the beginning of an new proceeding, Bruno v. United States, 1950, 86 U.S.App.D.C. 118, 180 F.2d 393, and see United States v. Hayman, 1952, 342 U.S. 205, 222, 72 S.Ct. 263, 96 L.Ed. 232, and therefore a transcript of the trial may not be obtained at government expense for the purpose of its preparation.
28 U.S.C. § 1915(b) prior to October 31, 1951, contained a provision similar to but not identical with that of section 753(f) authorizing the court to direct that a transcript Of the testimony be furnished at the expense of the United States to a litigant allowed to proceed in forma pauperis. By the Act of October 31,1951, 65 Stat. 727, this particular provision was deleted from section 1915(b). The cases under the subsection as it originally stood are therefore no longer authoritative but they nonetheless are persuasive in support of the government’s position. United States v. Carter, D.C. D.C.1950, 88 F.Supp. 88; United States v. Bernett, D.C.Md.1950, 92 F.Supp. 26, affirmed per curiam without discussion of this point, 4 Cir., 1950, 183 F.2d 1024; Cohen v. United States, D.C.E.D.Mich. 1954, 123 F.Supp. 717; and see United States v. Nystrom, D.C.W.D.Pa.1953,115 F.Supp. 500, 503. We conclude that no statutory authority exists for the preparation of a transcript at the expense of the United States in this case.
Coming now to the mooted “motion to vacate sentence”; Section 2255 provides:
“Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.”
The District Court premised its denial of this motion on the ground “The motion, files and records of the case render a hearing unnecessary and indicate conclusively that the defendant is not entitled to the relief for which he prays in his moving papers”.
The “motions, files and records” available here, far from showing conclusively that Stevens is entitled to no relief, are not in any way informative on the issues raised by Stevens. The District Court apparently did not make use of the provisions of 28 U.S.C. 753(b) allowing the District Judge to require the official reporter to transcribe his notes and deliver them to him. And even had this course been pursued the case could not have been disposed of without a hearing because the transcript could not have supplied any information on many of Stevens’ contentions. It was error, therefore, not to provide a hearing as set out in Section 2255. James v. United States, 5 Cir., 1949, 175 F.2d 769; Davis v. United States, 8 Cir., 1954, 210 F.2d 118, 122; Martin v. United States, 8 Cir., 1952, 199 F.2d 279.
For the reasons stated the order of November 17, 1954 will be affirmed; the order of October 28, 1954 insofar as it relates to the denial of the motion to vacate sentence will be reversed and the cause remanded with directions to proceed in accordance with this opinion.
. Tn the interest of justice and to “clear the decks” we deem it desirable and necessary to deal with the District Court’s denial of the motion to vacate although Stevens did not, in the appeal which he filed pro se, advert to such denial.
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_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.
Ivan C. McLEOD, Regional Director of the Second Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee, v. BUSINESS MACHINE AND OFFICE APPLIANCE MECHANICS CONFERENCE BOARD, LOCAL 459 INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, Respondent-Appellant.
No. 243, Docket 27317.
United States Court of Appeals Second Circuit.
Argued Dec. 28, 1961.
Decided Feb. 7, 1962.
Everett E. Lewis, New York City (Abramson & Lewis, New York City, and Leonard Greenwald, Donald Grody, New York City, on the brief), for appellant.
Winthrop A. Johns, Assistant General Counsel, National Labor Relations Board, Washington, D. C. (Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel, Jacques Schurre, Attorney, National Labor Relations Board, Washington, D. C., on the brief), for appellee.
Murray Gartner, New York City (Poletti, Freidin, Prashker & Harnett, New York City, Richard H. Borow, Noel B. Berman, New York City, of counsel), for charging party.
Before MOORE, KAUFMAN and MARSHALL, Circuit Judges.
MARSHALL, Circuit Judge.
This is an appeal from a district court order granting a petition for an injunction filed by a Regional Director of the N.L.R.B. pursuant to section 10 (l) of the National Labor Relations Act, as amended. The petition alleged, and the lower court found, there was reasonable cause to believe appellant Local 459 was engaging in conduct violative of section 8(b) (4) (ii) (B) of the Act.
The evidence disclosed that certain members of appellant employed by Remington Rand Univac Division, Sperry Rand Corporation (Rand), as tabulating service mechanics have been on strike since September, 1961. In the course of this strike, appellant began distributing handbills at the premises of certain businesses which lease equipment, such as tabulators and computors, from Rand. Some, or perhaps all, of this equipment is serviced by Rand employees who are thus performing the struck work. One firm, Macy’s Department Store, also sells consumer products produced by Rand. There is no evidence in the record to indicate whether the other businesses sell Rand products or whether their relations are limited solely to the leasing and servicing of equipment. The handbills appealed to the public not to patronize these firms.
The district judge found there was “reasonable cause,” within the meaning of section 10 (i), to believe the hand-billing violated section 8(b) (4) (ii) (B). Because there is no dispute as to the material facts in evidence and because we are faced solely with questions of law, we need decide only whether the judge below “was wrong, not whether he was ‘clearly’ so.” Empressa Hondurena de Vapores, S. A. v. McLeod, 300 F.2d 222 (2 Cir., Jan. 12, 1962). We believe the injunction should not have been granted because previous Board decisions construing the so-called “publicity proviso” would preclude it from finding an unfair labor practice in this case. Under these circumstances, injunctive relief under section 10 (i) cannot be granted without usurping the function of the Board and violating the congressional intent behind that provision. We must, therefore, reverse.
Prior to the enactment of section 10 (I), federal courts were without jurisdiction to issue injunctions in “labor disputes” under the broad prohibitions of the Norris-LaGuardia Act. Passed in 1932, that statute was a manifestation of strong congressional disapproval of the performance of federal courts in labor disputes. It was believed the temporary-restraining order and preliminary injunction were inappropriate remedies for such use because they often settled the dispute under the guise of merely preserving the status quo. Moreover, Congress believed the federal courts, through the injunctive process, had set themselves up as economic arbiters of labor strife, a function which Congress believed they were institutionally ill-equipped to undertake and which could lead only to the tarnishing of judicial prestige. The Legislature believed the formulation of labor policy was essentially a political question and belonged to it. The statute, therefore, “was prompted by a desire * * * to withdraw federal courts from a type of controversy for which many believed they were ill-suited and from participation in which, it was feared, judicial prestige might suffer.”
When Congress wrote the Taft-Hartley Act in 1947, however, it believed NorrisLaGuardia to be so broad that certain of the new provisions of section 8(b), creating union unfair labor practices, would be rendered nullities without some use of the injunctive process. Section 10 (l), essentially a compromise measure, was enacted to fill this need. Attempts to restore power to the federal courts to issue injunctions in certain labor disputes upon petition by purely private parties were abandoned because “opposition to restoring the injunctive process * * * seemed to be so strong * * * ” that other provisions of the bill were endangered. One of the principal arguments employed to defeat these attempts was that the federal courts would once again become too deeply involved in labor disputes without the aid of initial adjudication by an expert agency. It is against this background that section 10 (0 must be read.
Section 10(£) was designed by Congress to provide a means by which temporary injunctive relief could be obtained “pending the final adjudication of the Board.” Sen.Rep.No. 105 (80th Cong. 1947), p. 27. H.R.Conf.Rep.No.510 (80th Cong.1947), p. 57. It does not provide relief beyond that stage, for Sections 10(e), (f) specify the procedure to be followed after the Board has rendered a decision. These sections allow temporary relief pending appeal or petition for enforcement, but only in aid of the Board order. Those attempting to upset a decision by the Board cannot obtain such relief pending their appeal. It is clear, therefore, that if the Board holds the present case does not involve an unfair labor practice, the injunction affirmed here must be dissolved forthwith, regardless of whether the charging party decides to appeal.
Because section 10 (l) injunctions have only this limited purpose, a finding of “reasonable cause” must be premised on a belief there is a reasonable possibility of the Board sustaining the unfair labor practice charge. But previous Board decisions preclude it from finding an unfair labor practice here without reversing field, and, needless to say, there has been no showing there will be such a reversal. In Lohman Sales Co., 132 N.L.R.B. No. 67, the Board construed the words “product” or “produced,” as used in the so-called “publicity proviso,” to encompass all forms of labor or service and rejected a literal interpretation which would limit them to actual consumer goods. The Board further indicated it would not construe the proviso to “attach special importance to one form of labor over another.” Under this interpretation, the handbilling here would be protected by the “publicity proviso.” Subsequent cases have consistently adhered to this rationale and have bolstered the assertion of the dissenter in Lohman that “[t]he net result of this interpretation is to sanction the indiscriminate hand-billing of virtually any business.”
The Regional Director, however, believes the anticipation the Board will abandon this rationale “reasonable,” because, in his view, every factual situation yet ruled upon by the Board involved a “direct connection” between services provided by the primary employer and products distributed by the secondary business. He contends there is no such connection here between the tabulators and computors and the products distributed by the handbilled firms. We do not believe, however, the Board decisions in question allow for such a distinction. In Golden Dawn Foods, 134 N.L.R.B. No. 73, the Board was faced with two disputes involving two primary employers and one secondary business. The first dispute involved a refrigeration installation and maintenance contractor who employed non-union workers to install and service the refrigeration equipment in the secondary employer’s super market. The Regional Director contends the refrigeration equipment makes eertain products saleable and is thereby “directly connected” with them. Even if we were able to accept this as a viable distinction, it would not dispose of the other dispute which involved an electrical contractor who did all the electrical work in the building. Here indeed was the Board’s golden opportunity to expound upon the “direct connection” test, for the electricity in the building had no such connection with products distributed by the secondary employer. The Board, however, merely said handbilling in both disputes was protected by the publicity proviso “[f]or the reasons stated in the Lohman Sales case * * * ”. Nor has the Regional Director said why Northwestern Construction of Washington, 134 N.L.R.B. No. 46, is distinguishable on the grounds there is a “direct connection” between construction work on a building and products ultimately sold in that building.
In meeting the issues before us, we must be mindful of a key fact relating to the internal structure of the agency itself. Because the prosecutory and judicial functions have been separated within the Board, the General Counsel (or his representative, here the Regional Director) acts upon his own authority in issuing unfair labor practice complaints and seeking injunctions. If the General Counsel disagrees with the Board’s interpretation of the statute, there is little to stop him from continuing to issue complaints in the hope of having the Board reverse itself. The decision in Golden Dawn indicates the General Counsel in fact did seek to have Lohman overruled. Whether this is such a case or not is irrelevant, for the danger is there. While we must give great weight to a Regional Director’s finding of reasonable cause, we should not usurp the functions of the Board itself in doing so. The preliminary injunction is of critical importance to participants in labor disputes, for it may have as great an effect upon the dispute as the ultimate outcome of the litigation. A careless interpretation of section 10(1), therefore, may make the General Counsel and the federal district courts the actual focal points of unfair labor practice adjudications. But this is precisely the result Norris-LaGuardia and section 10(1) were designed to avoid in their deliberate minimization of the role of the courts in these matters. We must, therefore, defer to the clear purport of Board precedents, whether we believe them right or wrong, and dismiss the petition.
The charging party, Rand, contends the handbills distributed are untruthful and, therefore, not protected by the “publicity proviso.” Because the Regional Director has not relied upon this in his petition or argument, we believe the question governed not by section 10(1), but by the Norris-LaGuardia Act. We lack jurisdiction, therefore, to grant relief. Section 10(1) is operative only upon the filing of a petition by a Regional Director of the Board. This limitation was imposed in order to restrict the potential involvement of federal courts in labor disputes. For that reason, we do not read it to allow consideration of issues not raised by the Regional Director. To do otherwise would not only increase the danger of over-involvement on the part of the federal courts but would also ignore the expertise which section 10 (Í) commands us to attribute to the Regional Director. It is his view of the facts and law the district judge is to evaluate in a section 10 (i) proceeding. The courts are not free to roam at will over every aspect of a labor dispute upon the request of the charging party. We are mindful of the fact the statute allows the charging party to appear by counsel and present relevant testimony. We believe, however, the principal role in these proceedings is to be played by the Regional Director acting in the public interest, and while the charging party is free to aid him in the course of the litigation, the charging party may not substitute itself as the principal complainant. The reversal here is not a bar to a further petition based upon the alleged untruthful nature of the handbills. The only relief available, of course, would be the enjoining of handbills which are untruthful, not, as the charging party seems to contend, an injunction against all handbilling.
Reversed.
. 29 U.S.C.A. § 160 C).
That section provides in part:
“Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (A), (B) or (C) of section 158(b) of this title, or section 158(e) of this title or section 158(b) (7) of this title, the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred. If, after such investigation, the officer or regional attorney to whom the matter may be referred has reasonable cause to believe such charge is true and that a complaint should issue, he shall on behalf of the Board, petition any United States district court within any district where the unfair labor practice in question has occurred, is alleged to have occurred, or wherein such person resides or transacts business, for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter. Upon the filing of any such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provision of law: Provided further, That no temporary restraining order shall be issued without notice unless a petition alleges that substantial and irreparable injury to the charging party will be unavoidable and such temporary restraining order shall be effective for no longer than five days and will become void at the expiration of such period. * * * Upon filing of any such petition the courts shall cause notice thereof to be served upon any person involved in the charge and such person, including the charging party, shall be given an opportunity to appear by counsel and present any relevant testimony.”
The order enjoined Local 459 from:
“(a) Continuing its current handbilling at or in the vicinity of the premises, stores or ticket offices operated by Associated Lerner Shops of America, Inc., Macy’s New York, Eastern Air Lines, American Tobacco Company, or any other customer of Remington Rand Univac Division, Sperry Rand Corporation; or
“(b) In any manner or by any means, including handbilling, threatening, coercing or restraining Associated Lerner Shops of America, Inc., Macy’s New York, Eastern Air Lines, American Tobacco Company, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Associated Lerner Shops of America, Inc., Macy’s New York, Eastern Air Lines, American Tobacco Company, or any other person, to cease doing business with Remington Rand Univac Division, Sperry Rand Corporation.”
. 29 U.S.C.A. § 158(b) (4) (ii) (B).
That section provides in part:
“(b) It shall be an unfair labor practice for a labor organization or its agents—
*****
“(4) * * * (y) threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
$ $ $ $ $
“(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 * * *
“ * * * Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution.”
. 29 U.S.C.A. §§ 101-115.
Local 753, Milk Wagon Drivers v. Lake Valley Farm Products, Inc., 311 U.S. 91, 61 S.Ct. 122, 85 L.Ed. 63 (1940); New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 58 S.Ct. 703, 82 L.Ed. 1012 (1938).
. The Senate report observed:
“It cannot be successfully claimed that the courts have not written into these injunction cases a new law of labor disputes, fitting the law to each particular case, and then enforcing this new law made by the court. * * *
“It is difficult to see how any civilized people could indefinitely submit to such tyrannical procedure. It is not difficult to understand how such cruel laws, made not by any legislature but by a judge upon the bench, should bring our Federal courts into disrepute.” S.Rep. No. 163, 72nd Gong., 1st Sess. 18 (1932).
. Frankfurter & Greene, The Labor Injunction, 201 (1930).
. See Note 4, supra.
In both Houses of Congress the debate over the passage of Norris-LaGuardia focused on the role of the courts. Senator Norris observed:
“[I]t is because we have now on the bench some judges — and undoubtedly we will have others — who lack the judicial poise necessary in passing upon the disputes between labor and capital that such a law as is proposed in this bill is necessary.” 75 Cong.Rec. 4510 (1932).
“This judge-made law has developed in the past 40 years. The judges have themselves enforced the penalties for the violations of the laws made by them * * * It is because of this development of law made on the bench that our federal courts have lost a great deal of respect.” 75 Cong.Rec. 5463 (1932) (Remarks of Representative O’Connor).
. See Notes 4 and 6, supra.
“We are trying to reestablish a system of laws for the government of the courts. We are writing a law binding the courts to a definite course of action with reference to injunctions. We are not disturbing the government of laws but we are taking away from the courts their right to act as if they were a government of men.” 75 Cong.Rec. 4509 (1932) (Representative Oliver).
“The public policy laid down in the bill, I think, is essential, because there should be some standard by which the courts may know, at a time when they are in such confusion, what it is proper to do. I think the most fitting and, in reality, the only proper tribunal to express such a policy is the Congress.” Id. at 5470 (Representative Browning).
. Marine Cooks v. Panama S.S. Co., 362 U.S. 365, 370 n. 7, 80 S.Ct. 779, 783, 4 L.Ed.2d 797 (1960).
. II N. L. R. B. Legislative History of the Labor-Management Relations Act, 1365 (1948) (Remarks of Senator Taft).
. Id. at 1360-1 (Remarks of Senator Morse).
. E.g. Middle South Broadcasting Co., 133 N.L.R.B. No. 165.
. In effect, the Regional Director would have us ignore what was said in Lohman as mere dictum. Even without the subsequent decisions discussed herein, we might well be hard pressed to find it “reasonable” to expect the Board to abandon a rationale recently expressed and clearly designed to govern its consideration of future cases. In any event, we do not believe the lack of a decision precisely on point is by itself sufficient to constitute reasonable cause. Penello v. Local Union No. 59, Sheet Metal Workers, 195 F.Supp. 458, 473 (D.Del.1961).
. The Regional Director’s position in this respect is not abundantly clear. He introduced no evidence to show the relations between Rand and the handbilled firms were limited solely to the leasing and servicing of equipment. Apparently he contends this factor is irrelevant because the handbills made no reference to such products. Because the Board has held in the clearest possible fashion “that the publicity proviso was intended to permit a consumer boycott of a secondary employer’s entire business and not merely a ‘product,’ ” Middle South Broadcasting Co., 133 N.L.R.B. No. 165, we believe such proof was essential to any action premised on the so-called “direct connection” test.
. See generally 2 Davis, Administrative Law §§ 13.01-13.11 (1958).
. The present case is almost a classical example of this. The injunction, coming at the peak of the Christmas season, prevented handbilling at the very time it would have its greatest effect. Our reversal, however, cannot restore the parties to the power relationship existing at that time.
. We express no opinion as to the conflicting interpretations of the statute delineated in Lohman or as to the proper disposition by the Board of the present case. Our decision is limited solely to the role of federal judges issuing injunctions under section 10 (Z). These other issues may be appropriately determined only under section 10(e) and (f).
. We do not hold a district court’s sole inquiry under section 10(Z) is whether anticipation of Board relief is reasonable. We say only that in the absence of such a finding, no relief is obtainable. Having made such finding, however, the court must further find reasonable cause to be-believe that a Board decision finding an unfair labor practice will be enforced by a Court of Appeals. Conversely, the Regional Director must demonstrate some support, both factual and legal, for every element of his case.
. The district judge in this ease was aware of these restrictions and made no findings as to whether the handbills were untruthful.
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:
|
sc_threejudgefdc
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts.
TRAVIA et al. v. LOMENZO, SECRETARY OF STATE OF NEW YORK, et al.
No. 1218.
Decided June 1, 1965.
Simon H. Rijkind and Edward N. Costikyan for appellants.
Louis J. Lejkowitz, Attorney General of New York, Daniel M. Cohen and George D. Zuckerman, Assistant Attorneys General, Donald Zimmerman, Special Assistant Attorney General, and Orrin G. Judd for Lomenzo et al.; and Leonard B. Sand and Max Gross for WMCA, Inc., et al., appellees.
Per Curiam.
The motion to accelerate the appeal is denied. The application for a stay, addressed to Mr. Justice Harlan as Circuit Justice and referred by him to the Court for consideration under Rule 50 (6), is denied.
Question: Was the case heard by a three-judge federal district court?
A. Yes
B. No
Answer:
|
songer_usc1
|
18
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
UNITED STATES of America, Appellee, v. Robert D. POITRAS and William J. Duprez, Appellants.
No. 9488.
United States Court of Appeals Fourth Circuit.
Argued Nov. 19, 1964.
Decided Dec. 8, 1964.
James Woolls, Alexandria, Va. (Court-assigned counsel), for appellants.
Plato Cacheris, First Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on brief), for appellee.
Before BRYAN and BELL, Circuit Judges, and NORTHROP, District Judge.
PER CURIAM:
In our opinion the District Court did not err in refusing to allow the accused the number of peremptory challenges permitted in a capital case, the one error they assign on this appeal. While the charge was kidnapping, in violation of 18 U.S.C. § 1201 which permits punishment by death, the appellants were granted only the challenges prescribed for a non-capital felony prosecution because the indictment stated that the victim was “unharmed at the time of his liberation”.
Greater precision could have been achieved by the criminal pleader by use of the statutory language, “liberated unharmed”, to avoid limiting the existence of injury to the date of liberation. Cf. Robinson v. United States, 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944 (1945); Smith v. United States, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959), including the separate opinion of Justice Clark at p. 13, 79 S.Ct. at p. 998. But we find the present allegation sufficed to guarantee the defendants immunity from the death penalty.
In addition, the Government’s bill of particulars and the oral explanation of the Court on voir dire examination unequivocally and irrevocably informed the jurors that capital punishment was neither sought nor possible in their verdict. The judgment of the District Court will be affirmed.
Affirmed.
. Fed.R.Crim.P. 24(b).
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_genresp2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
H & M CAKE BOX, INC., Plaintiff, Appellant, v. BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA, LOCAL NO. 45, Defendant, Appellee.
No. 74-1004.
United States Court of Appeals, First Circuit.
Argued March 7, 1974.
Decided March 20, 1974.
Frederick T. Golder, Boston, Mass., for appellant.
Warren EL Pyle, Boston, Mass., with whom Angoff, Goldman, Manning, Pyle & Wanger, Boston, Mass., was on brief, for appellee.
Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.
PER CURIAM.
After we remanded this case to the district court, 454 F.2d 716 (1st Cir. 1972), another judge, relying on intervening decisions of the Supreme Court and this circuit, granted summary judgment for the defendant union. The district court held that both the employer’s claim for damages for alleged violation of the no strike clause and its contention that the union had repudiated the collective bargaining agreement, or its arbitration provision, were issues for the arbitrator to decide. The court therefore dismissed the action brought by the company for damages for the union’s alleged violation of the agreement’s no strike pledge. We affirm.
The collective bargaining agreement in question calls broadly for “amicable settlement by arbitration of grievances and disputes arising under it.” Arbitration procedures are provided “[i]n the event a dispute or grievance arises as to the meaning, application or enforcement of this agreement. . ” Employer’s claim for damages would rather plainly fall within this “broad” clause. Similarly, and under the very rationale we adopted in General Dynamics Corp. v. Local 5, Marine & Shipbuilding Workers, 469 F.2d 848, 853-854 (1st Cir. 1972), the question of what conduct constitutes repudiation of the contract or its arbitration provision would be a “dispute or grievance . . . as to the meaning, application or enforcement . . . . ” Cf. Operating Engineers, Local 150 v. Flair Builders, Inc., 406 U.S. 487, 491-492, 92 . S.Ct. 1710, 32 L.Ed.2d 248 (1972).
Thus, following Flair and General Dynamics, both decided after our earlier decision herein, the district court properly concluded that the employer could not pursue its damages action in court, at least before a determination by the arbitrator of non-arbitrability or of repudiation. If plaintiff wishes to pursue the argument that breach of the no strike clause excuses compliance with the arbitration clause, he must address it to the arbitrator. Cf. Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 387, 94 S.Ct. 629, 639, 38 L.Ed.2d 583 (1974).
Appellant fears that should he now seek arbitration, the union will raise the defense of laches. It is doubtless true that appellant could not have predicted the legal fluctuations which resulted in our two disparate opinions and which may have prolonged these proceedings and tipped the outcome to appellant’s disadvantage. Presumably such circumstances tending to justify his initial preference for court proceedings in lieu of arbitration may be presented to the arbitrator in mitigation should laches be raised.
Affirmed.
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_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.
LIPSCOMB v. TENNESSEE COAL, IRON & R. CO. TENNESSEE COAL, IRON & R. CO. v. LIPSCOMB.
No. 13441.
United States Court of Appeals Fifth Circuit.
June 25, 1951.
William L. Hogue, Asst. U. S, Atty., John D. Hill, U. S. Atty., Birmingham, Ala., for appellant.
Andrew J. Thomas, Birmingham, Ala., for appellee.
Before HUTCHESON, Chief Judge, and BORAH and STRUM, Circuit Judges.
JOSEPH C. HUTCHESON, Chief Judge.
Brought to recover $3301.20, the difference between the pay of the position he was assigned to on his return from the service and the one he claims he was entitled to have been placed on, this is another in the long catalogue of suits which have been brought in vindication of the rights accorded returned veterans by the Selective Training and Service Act of 1940, as amended.
The claim in substance was: that on his re-employment by the defendant in February, 1946, after a leave of absence on military service since October, 1943, he should have been assigned to the position of lathe machine operator rough, or of roughing lathe helper; that instead, defendant reemployed him as crane operator, the same position he had had when he left; and that in doing so, it had, in violation of his rights under the act, deprived him of his seniority rights in favor of one Elrod who had succeeded him as craneman and had then been successively promoted to roughing lathe helper and machine operator.
While there were other defenses, the one relied on mainly below and entirely here is: that the re-employment of plaintiff in February, 1946, in his former position was not in derogation of, but in compliance with, the act; that however, by virtue of a written agreement of date June 10, 1946, between defendant and the United Steel Workers Union, the recognized bargaining agent, plaintiff became entitled, within fifteen days thereafter, to be placed in the position of roughing lathe helper with seniority in such position from November 21, 1943, and, because he was not assigned to that position until February 20> 1948, which position he now holds, he was entitled to recover wages lost 'by the delay in assigning him to it in a sum of which was agreed to as $119.87, less payroll deductions.
The case was tried to the court without a jury, and, the evidence all in, the district judge, on full findings of fact and of law, held: that plaintiff, upon his return was not, and would not have been except after six months’ experience as roughing lathe helper, qualified to perform the duties, and he was, therefore, not entitled to be then employed as roughing lathe operator; but that he was qualified however, to- perform, and should have been assigned to the job of, roughing lathe helper with seniority on that job from November, 1943, and was entitled to recover the agreed wages lost by not being earlier assigned to that job. He found, too: that, under the practice and custom recognized by the defendant and its employees and prevailing in that part of the defendant’s plant where plaintiff was employed, seniority as to both promotion and increase or decrease in forces operated on the individual and separate job positions or levels in the line of promotion; that 'because by the time plaintiff could have qualified as a roughing lathe operator, Byron Elrod, during the period after plaintiff’s return, acquired age on the job as roughing lathe operator, which gave El-rod job seniority as roughing lathe operator, before plaintiff could have qualified as roughing lathe operator; and that plaintiff was, therefore, not entitled to seniority over Elrod as to that position.
He, therefore, entered a judgment for plaintiff: (1) that plaintiff recover the sum of $115.25, less $15.59; (2) that the defendant be, and it is hereby required to maintain plaintiff’s seniority as a roughing lathe helper ahead of and superior to that of Byron V. Elrod insofar as said seniority concerns increase or decrease in forces, but the defendant is not required to maintain plaintiff’s seniority with respect to promotion to the position of roughing lathe operator ahead of, or superior to, that of Byron V. Elrod.
Plaintiff is here appealing from the part of the judgment denying him seniority over Elrod as to the position of lathe operator and a recovery of lost wages accordingly.
Defendant, while not complaining of the effect of the judgment either as to the seniority adjudged or as to the amount of back pay awarded, has cross appealed in complaint of some of the findings of the couit and of the court’s failure to amend and add to its findings as requested by defendant.
Matching plaintiff’s complaint of the judgment with defendant’s, the matter before us comes down to this: Was the district judge wrong in denying plaintiff seniority over Elrod as to the position of lathe operator? Appellant insists that he was because he was either entitled upon his return to be assigned to the position of lathe operator or, if he was not so entitled but only to be assigned to the position of roughing lathe helper with seniority as to that position, he was nevertheless entitled to maintain that seniority not only as to that position 'but as to the next position in line of promotion, lathe operator.
Urging upon us that it is illogical to hold, as the trial court did, that plaintiff was entitled to seniority over Elrod as roughing lathe helper but was not entitled to it as to lathe operator, a position which Elrod got by first serving as roughing lathe helper, appellant insists that the judgment must be reversed.
Appellee, on its part, urges: that when plaintiff went into the service, it was under the protection of an act which entitled him not to a promotion during his absence but a return to the same position; that since when he went into the service he had no contract entitling him to such promotion on seniority alone, and no contract, as in Armstrong’s case, 73 F.Supp. 329, relied on by appellant, was made while he was in the service which enlarged his rights, he was not entitled on his return to promotion on seniority alone; that by virtue of the contract of June 10, 1946, he became entitled to be employed as of his return in a position which he was qualified to fill on his return that would result in a promotion with seniority as to that position; and that it was because of that contract alone and not because of any requirement of the act that he was so entitled to the position of roughing lathe helper which he was able to fill on his return.
It further points out that, under the contracts and practices existing between defendant and the bargaining agent for the employees, and as found by the district judge, it was established that a seniority acquired as to a particular job or position may not be made to give way to a general seniority; and that, under the un-pear on either the appeal or the cross ap-disputed facts and as found by the court, plaintiff was not entitled Oil híá r'étüfíl to the position of lathe operator, and, while he was getting the necessary experience, Elrod had already acquired seniority in that position.
So pointing, it urges upon us that, notwithstanding the erroneous finding of the court that plaintiff was entitled to reemployment as a roughing lathe helper from the time of his return, the judgment must, nevertheless be affirmed. This is because plaintiff was entitled from and after the making of, and under, the contract in June, 1946, to receive the position of roughing lathe helper with seniority and defendant therefore owes plaintiff the amount awarded him the difference in pay between the position of craneman and roughing lathe helper from the time of his return.
We agree with appellee, and, agreeing, affirm the judgment. A careful reading as a whole of the findings of fact and of law of the district judge, in the light of the evidence and the judgment, leaves us in no doubt: that the amounts agreed to be due plaintiff were stipulated as due from June, 1946, to February, 1948, and not as inadvertently stated by the court from February, 1946, to February, 1948; and that the finding and the conclusion of law that plaintiff was entitled to recover for that period were erroneous. It convinces us, too, that, though erroneous, they were inadvertent and also without bearing or effect upon the substance of the findings and judgment. The findings and conclusions as a whole particularly fact findings 13 and 14, and the judgment, make it quite clear that the district judge understood and gave full effect to the contract of June 10, 1946, and that in finding and deciding as he did, no conflict or inconsistency was intended or occurred between the decision in this case and those in the other cases from the Northern District of Alabama cited and relied on.
No reversible error being made to appeal, the judgment as to both appeals is
Affirmed.
. 50 U.S.C.A. Appendix, §§ 308 and 357.
. Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230; Aeronautical Industrial Dist. Lodge 727 v. Campbell, 337 U.S. 521, 69 S.Ct. 1287, 93 L.Ed. 1513; Meehan v. Nat’l Supply Co., 10 Cir., 160 F.2d 346; Hewitt v. System Federation No. 152, 7 Cir., 161 F.2d 545; Harvey v. Braniff International Airways, 5 Cir., 164 F.2d 521; Raulins v. Memphis Un. Station Co., 6 Cir., 168 F.2d 486; Oil Workers Int. v. Sinclair, 5 Cir., 171 F.2d 192; Special Service Co. v. Delaney, 5 Cir., 172 F.2d 16; Bond v. Tennessee Coal, Iron & R. Co., D.C., 73 F.Supp. 333.
. See authorities cited in note 2, supra.
. Armstrong v. Tennessee Coal, Iron & R. Co., D.C., 73 F.Supp. 329; Bond v. Tennessee Coal, Iron & R. Co., D.C., 73 F.Supp. 333.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
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songer_counsel2
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E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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
June M. CARLBERG, by Vida M. Frick, Guardian, Appellant, v. UNITED STATES of America, Appellee.
No. 16423.
United States Court of Appeals Eighth Circuit.
Aug. 12, 1960.
Homer Bruce, Houston, Tex., made oral argument for appellant.
Crombie J. D. Garrett, Atty., Dept, of Justice, Washington, D. C., made oral argument for appellee.
Before SANBORN, MATTHES and ■BLACKMUN, Circuit Judges.
BLACKMUN, Circuit Judge.
This case, genuine but admittedly test litigation, involves the federal income tax consequences of one aspect of the statutory merger, effected in November 1956, of The Long-Bell Lumber Corporation, a Maryland corporation, and The Long-Bell Lumber Company, a Missouri corporation, into International Paper Company, a New York corporation, the survivor. These corporate entities will be referred to as “Maryland”, “Missouri”, and “International”, respectively.
The statutes in question are § 368(a) (1) (A), § 354(a) and § 356(a) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 368(a) (1) (A), § 354(a) and § 356(a).
The government raises no question as to the bona fide business purposes of the merger. The sole issue is whether the “Certificates of Contingent Interest” (as well as the certificates for whole shares and rights in fractional shares of International), received by shareholders of Maryland and Missouri upon the merger, qualify as “stock”, within the meaning of § 354(a), or, instead, as “other property”, within the meaning of § 356(a) d).
The litigation takes the form of a suit for refund of income taxes paid by the plaintiff-appellant, hereinafter called the taxpayer, for the calendar year 1956. The government counterclaimed as permitted by § 7422(e) of the 1954 Code. The parties agree that if the sole issue is decided in the taxpayer’s favor she is entitled to judgment in the amount of her claim, but that if the issue is decided in the government’s favor it is entitled to judgment in the amount of its counterclaim. The case was submitted to the trial court upon the pleadings, a stipulation, and briefs. The government prevailed below.
We endeavor to recite only those factual details which focus attention upon the narrow but neatly precise question now before us.
In 1956, prior to the merger, there were outstanding Class A and Class B common stock of Maryland, capital stock of Missouri, and preferred and common stock of International. Under the plan of merger each stockholder of Maryland and each stockholder of Missouri received, in exchange for his shares in those corporations, a certificate for whole shares of common of International and a right to a fractional share of the same common (these whole and fractional shares in the aggregate totalling 849,997) and, as the government in its brief has described it, “a contingent interest in certain reserved shares of such common stock” of International. Specifically, each share, whether Class A common or Class B common of Maryland or capital of Missouri, was converted by the merger into (1) a fractional share of International common and (2), as the government has again described it, a “contingent interest in a fractional share” of International common represented by a “Certificate of Contingent Interest.”
The Certificates of Contingent Interest came about in this manner: At the time of the merger Missouri possessed two unresolved but potentially substantial liabilities. One was its possible obligation for unsettled federal income and excess profits taxes for certain past taxable years. The other was litigation pending against Missouri in federal court in the State of Washington. International lacked complete knowledge concerning these matters in controversy and it was therefore agreed that under the plan of merger, in order to protect International, 49,997 shares of its common, which would otherwise then also have been issued to the shareholders of Maryland and Missouri, would be set aside as “Reserved Shares” pending the determination of these liabilities of Missouri and that Certificates of Contingent Interest would issue with respect to them. As the liabilities would become resolved and as expenses with respect to them would be incurred, the Reserved Shares were to be reduced monthly by charges computed according to a formula based upon quoted values of International common. After all deductions of this kind had been made any remaining Reserved Shares were to be distributed to the then holders of the Certificates.
In summary, then, and to repeat: Each holder of shares in Maryland or Missouri received upon the 1956 merger, in place of those shares, common of International and a Certificate of Contingent Interest. To the extent that his prior holdings in Maryland or Missouri entitled him to whole shares of International common, he received a formal certificate for those shares. He received no certificate for any additional fractional share of International common to which he was entitled but, instead, had a “right” thereto. His Certificate of Contingent Interest was formally issued, was registered, and was transferable.
This particular taxpayer at the time of the merger was the owner of 504 shares of Class A common of Maryland and of 200 shares of capital of Missouri. Upon the merger she received for these stocks certificates for 413 shares of International common, the right to a fractional interest of 3124/100,000 of one share of such common, and Certificates of Contingent Interest for 24.31416 units of contingent interest.
The then value of what the taxpayer received upon the merger exceeded her income tax basis in her Maryland and Missouri shares. The government concedes, however, that the merger was a “statutory merger” under § 368(a) (1) (A) and that the certificates for the 413 whole shares of International common and the right in the fractional share were “stock” which came to her under § 354(a) (1) without recognition of gain. This leaves in controversy only the Certificates of Contingent Interest and the treatment to be accorded them for income tax purposes.
The government’s position is that the Certificates constitute a different kind of property than the International common (whole shares and fractional share); that they were, in effect, “boot”; that they do not qualify for the tax free treatment enjoyed by the stock under § 354 (a) (1); and that they are to be treated, instead, under § 356(a) as dividends. The taxpayer contends that the Certificates represent and are nothing other than International common; that while the exact number of shares of that stock ultimately to be forthcoming to the taxpayer was not known in 1956 and could not then be known, because Missouri’s potential liabilities were unresolved, that fact cannot and does not negative the Certificates’ character as stock; and that, like the whole shares and the fractional share, they were received under § 354(a) (1) without recognition of gain.
The merger agreement is detailed. It recites generally the pertinent background facts of the 3 corporations and the purposes of International as the surviving corporation; describes International’s authorized preferred and common stock; contains the customary information as to principal office, duration, directors and agents for service of process; provides for dissenting shareholders, for capital of Missouri held by Maryland and for shares of Maryland Class B common held by Missouri; and recites facts as to the- approval of the merger by the 3 groups of stockholders. It also contains matter of particular concern here:
1. Paragraph IX provides, in each of 3 separate subparagraphs (i, ii, iii) dealing respectively with Maryland’s Class A common, Maryland’s Class B common, and Missouri’s capital stock, that each of these shares outstanding “shall, upon this certificate and these articles becoming effective, automatically and without any action on the part of the holder thereof be converted into and be deemed to be” the stated fraction of a share of International common and “a Contingent Interest in” a stated fraction “of one share of said Common Stock of International Paper Company, to be represented by a ‘Certificate of Contingent Interest’ in the form annexed hereto * * and that each Maryland (or Missouri) certificate “shall thereupon be deemed for all corporate purposes (other than the voting of fractional shares and subject, as regards payment of dividends, to the provisions of clause (v) below and, as to Contingent Interests, subject to the provisions of said Certificate of Contingent Interest) to evidence ownership of the number of fully paid, non-assessable shares of Common Stock and of the Contingent Interests in shares of Common Stock of International Paper Company into which such shares * * * shall have been so converted.”
2. Paragraph IX (v) provides that “after this certificate and these articles shall become effective, each holder” of a certificate representing stock of Maryland (or Missouri) “shall surrender the same” to a designated agent of International and be entitled to receive a certificate for whole shares of International common and a Certificate of Contingent Interest; that until that surrender no dividends upon International common shall be paid to the holder, but upon the surrender “the amount of dividends which have theretofore become payable” shall be paid to the person in whose name the certificate of International common is issued; and that “No cash dividends will be paid on the Certificates of Contingent Interest or upon the shares of Common Stock of International Paper Company reserved in respect thereof but certain cash payments in lieu of dividends will be made upon the distribution, if any, of such reserved shares, but only to the extent provided in said Certificates.”
.3. Paragraph IX (vi) provides that no certificates for fractional shares of International common will be issued on the merger but that Maryland and Missouri shareholders shall have approximately 90 days to sell them or buy fractions to make up whole shares, and that after that period all shares of International common held to cover fractional interests not then combined into whole shares will be sold and holders will then be entitled to receive their pro rata portions of the sale proceeds.
4. Paragraph IX (ix) provides that holders of Certificates of Contingent Interest shall be bound by their provisions and that the form of the Certificate is incorporated in the agreement by reference.
The form of the Certificate is itself pertinent: •
' 1. Its heading, in bold face type, says: “This Certificate Does Not Represent A Right To Any Fixed Amount Of Common Stock Of International Paper Company. Read This Certificate Carefully. This Certificate Is Void 10 Years After Notice Of Distribution Referred To On Back Hereof.”
2. It recites that the owner holds a stated number of “Units of Contingent Interest with respect to certain shares of common stock of International Paper Company * * * reserved pursuant to the” merger agreement. It says further that “One Unit of Contingent Interest is being issued for each share of Common Stock * * * so reserved and represents the right to receive * * * IF ANY, of the Reserved Shares * * * as may be distributable ultimately to all registered holders of Certificates *
3. It refers to the two “possible liabilities” of Missouri and to International’s lack of complete knowledge concerning them and then states that “* * * to protect it against expense and loss on account of either, there have been in effect withheld from the shares which it would otherwise have issued pursuant to the merger” shares of International common; that these shares “are hereinafter referred to as ‘Reserved Shares’ ” and that “This Certificate is issued to evidence the contingent interest which the registered holder hereof has in such number, if any, of the Reserved Shares as may be distributable ultimately.”
4. Paragraph 9 of the Certificate reads:
“In the event that prior to any distribution of Reserved Shares (i) there are any changes in the Common Stock of the Corporation through subdivision of shares, stock dividends, or combinations or reclas-sifications or changes in or elimination of par value of shares, or (ii) as a result of any other recapitalization merger or consolidation said Common Stock is converted into or exchangeable for any other shares, then in each such case the Reserved Shares then remaining, after all previous deductions made pursuant to paragraph 8 hereof, will be proportionately adjusted, changed, converted or exchanged, as the case may be.”
5. Paragraph 10 reads:
“Holders of Certificates will have no rights, by reason of their ownership thereof, as stockholders of the Corporation, including without limitation, no right to receive notices of any meetings of stockholders of the Corporation and no right to vote at any such meetings in respect of the Reserved Shares or otherwise.”
6. Paragraph 11 provides for a notice of distribution of the Reserved Shares. Paragraph 12 then reads in part:
“Subject to the further provisions of this paragraph, the distribution provided for in paragraph 11 hereof shall be made pro rata to the registered holders of all outstanding Certificates upon surrender thereof. Upon such distribution each registered holder will be entitled to receive the number of whole shares distributable in respect of the Certificate or Certificates surrendered by him. No fractional shares will be issued on such distribution. In lieu thereof the Corporation will pay a sum in cash equal to the value of the fractional share, * * *
“At the time of distribution of Reserved Shares, the Corporation will pay to each registered holder of a Certificate, upon surrender thereof, cash in an amount equal to the cash dividends which would have been paid in respect of the number of whole shares then distributed to him had such shares been issued to'him on the effective date of the merger”.
7. Paragraph 13 provides that all certificates must be surrendered within 6 years after the notice of distribution; that at the expiration of those 6 years International will set aside funds equal to the market value of any then undistributed Reserved Shares, plus “an amount equal to the cash dividends which would have been paid in respect of” such shares had they “been issued on the effective date of the merger”; that upon the surrender thereafter of any outstanding Certificate the holder will receive his proper portion of that fund but without interest and with “no other rights”; and that upon the expiration of 10 years from the notice of distribution any then undistributed funds will be returned to International’s general' funds free of claims “and all outstanding Certificates shall thereafter be null and void.”
In the consolidated balance sheet contained in each of its annual reports for the respective calendar years 1956 and 1957 International did not include the outstanding Certificates of Contingent Interest or the Reserved Shares among its listed capital items or in the supporting detail schedules. The Certificates’ existence and purpose, however, were explained in appropriate footnotes. Furthermore, after the merger a 3% stock dividend on International common was declared and an adjustment for this was made in the Reserved Shares.
As the government in its brief states, apparently “the issue in this case has not previously been litigated in any previous case in the non-recognition area”.
We observe, initially, that the Code does not define the term “stock” as it is used in the reorganization sections. Neither do the Regulations. In the absence of definitive help from these sources the term deserves only its ordinary meaning. See Deputy v. Du Pont, 308 U.S. 488, 498, 60 S.Ct. 363, 84 L.Ed. 416, and Commissioner v. Neustadt’s Trust, 2 Cir., 131 F.2d 528, 530.
Certain other principles merit mention. The situation at the time of the merger and not that as of any later date is controlling or, as the Supreme Court has said, “The critical time is the date of the exchange”. Helvering v. Southwest Consol. Corp., 315 U.S. 194, 201, 62 S.Ct. 546, 551, 86 L.Ed. 789. Also, the taxpayer has the burden of proof both as to her claim, Niles Bement Pond Co. v. United States, 281 U.S. 357, 361, 50 S.Ct. 251, 74 L.Ed. 901, and, by § 7422(e), as to the government’s counterclaim. We also recognize, on the other hand, that delay in the distribution of the Reserved Shares, that is, the mere lapse of time between November 1956 and the ultimate distribution of those shares, is apparently immaterial and not of itself fatal to their qualification as stock under § 354(a) (1). Fry, 5 T.C. 1058, 1071; McAbee, 5 T.C. 1130, 1150; Douglas, 37 B.T.A. 1122, 1128; Spang-ler, 18 T.C. 976, 984. Finally, while the name “Certificate of Contingent Interest” may not, in the light of the present litigation, have been the most apt or fortunate one to use, the name itself, of course, cannot determine ultimate rights and is not controlling. Cf. McAbee, supra.
We look first at what the corporate parties to the reorganization were trying to do. This is apparent. They were endeavoring to transfer the operation, as the government in its letter-ruling of October 22, 1956, described it, of an “integrated lumber business” (Missouri) and of “a holding company” (Maryland) to International which “is engaged directly and through its subsidiaries primarily in the manufacture and sale of various types of pulp and paper products” and which “presently has no timber operation and owns no timber properties west of the Rocky Mountains”. And, as the ruling also said:
“The directors of these corporations have concluded that the proposed transaction, if effected, will combine diversified but complementary experiences, skills and properties, and will provide a product and geographic diversification not now enjoyed by the corporations operating separately.”
But the existence of the Missouri liabilities, unresolved and potentially substantial as they were, hung over the proposal and presented a problem to International, to Missouri and, because Maryland possessed a substantial interest in Missouri, to Maryland as well. The solution and result was the device of the Reserved Shares. Its purpose thus was to protect International, to the extent it felt protection necessary, from these Missouri liabilities and to place their ultimate burden exactly where it belonged, viz., on the Missouri stockholders. Had the amount of those liabilities been known with specificity at the time of the merger there would have been no reason at all for the Reserved Shares, and a net number of shares, in addition to the original 849,997, or none at all, would then have been distributed to the Maryland and Missouri stockholders. Unquestionably, their receipt of such additional shares, had it taken place at that time, would have been free of recognized gain under § 354(a) (1) just as the 849,997 shares were so received. Why, then, should there be a difference in result because of the device of the Reserved Shares?
The government’s answer to this question comprises its posture on this appeal. It argues that the 1954 Code effected a narrowing from the 1939 Code in the area of corporate reorganizations resulting in tax free exchanges and a corresponding broadening of the taxable concept of “other property”. [Compare 1954’s § 354(a) (2) with 1939’s § 112(b) (3) ]. It points out that the agreement and the Certificate contain provisions and prescribe characteristics for the Certificate which do not conform to the usual concept of corporate stock. Specifically, it emphasizes that the agreement provides that no cash dividends are payable on the Certificates or on the Reserved Shares but that payments “in lieu of dividends”, although in amount equivalent thereto, will be made upon the distribution of the Reserved Shares; and that each holder is bound by the provisions of the Certificates. The government also notes that the Certificate itself denies that it represents a right to any fixed amount of common stock and asserts that if the Certificates are not surrendered within a prescribed time the sole distribution will be in cash and that the Certificate even becomes void 10 years after notice of distribution. It argues that these Certificates “will have to be converted into stock at some later date if ever”; that the Certificate is a contract independent of that between International and its stockholders with respect to its stock; that it is not known whether the Certificate holder will ever receive International common; that the Certificates are mere contracts to issue stock in the future under certain circumstances; that the Reserved Shares were not issued and outstanding; that paragraph 10 of the Certificate thrice denies stock characteristics; that the taxpayer by doing nothing eventually will get only cash; that because the Certificates are independently traded they have an intrinsic value separate and distinct from the value of International common; and that the taxpayer by the Certificates acquired something more than stock, or at least something different, and that this was “boot” and taxable. The government also relies on International’s failure to reflect the Certificates among the liabilities listed in its balance sheet. All these factors, says the government, impinge on the normal rights of a holder of stock and thus show that the taxpayer’s interest, while it may have value and while it may be a property interest, is not stock but is “other property” within the meaning of § 354(a) (1).
The taxpayer asserts that the Certificates of Contingent Interest, like certificates for whole shares, are not the shares themselves but are merely evidence of a stock interest, citing United States Radiator Corp. v. State, 208 N.Y. 144, 101 N.E. 783, 785, 46 L.R.A.,N.S., 585; Eisner v. Macomber, 252 U.S. 189, 208, 40 S.Ct. 189, 64 L.Ed. 521; Swobe v. Brictson Mfg. Co., 8 Cir., 279 F. 560, 562; Federal Deposit Ins. Corp. v. Gunderson, 8 Cir., 106 F.2d 633, 634, and other cases. She also takes comfort from both the merger agreement and the Certificate. She emphasizes the agreement’s provision that upon its becoming effective the outstanding Maryland and Missouri stocks shall “automatically and without any action on the part of the holder thereof be converted into and be deemed to be” stock of International and “a Contingent Interest” in a fraction of one share of such stock “to be represented by a Certificate of Contingent Interest.” She also points out that the caveat of the Certificate is directed only to “any fixed amount” of International common and does not at all negative her right in such common; that the Reserved Shares are shares “which it would otherwise have issued pursuant to the merger”; that the Certificate protects the Reserved Shares with respect to subdivision, stock dividends, reclassifications, other recapitalization, merger or consolidation; and that they are also protected with respect to interim dividends by the payments made at distribution. The taxpayer emphasizes that the government itself- has characterized the Certificate as “a Contingent Interest” in a fractional share of International common and as “representing an interest in stock” and she argues that the interest represented by the Certificate is not something different in kind than she had before the reorganization and that it therefore cannot be “boot”. She asserts that Paragraph 10 is not embarrassing to her because its language of limitation is directed to ownership of the Certificate and does not affect her basic rights as a stockholder. She notes that with respect to the fractional share, which the government has conceded was received tax free, there are parallel provisions in the merger agreement relating to sale and the like, when surrender is delayed, and yet these provisions do not affect the qualification of the fractional share as “stock”. She also notes that while International may not have reflected the Reserved Shares in its list of capital items in the two annual reports, there were protective footnote provisions there and that, more important, the Reserved Shares received the full benefit of the 3% stock dividend declared after November 1956, and she says that in any event what International does or does not do cannot effect binding tax results on the taxpayer.
Both parties place some reliance upon the implications of Helvering v. Southwest Consol. Corp., 1941, 315 U.S. 194, 62 S.Ct. 546, 548, 86 L.Ed. 789, supra. The problem there was whether a transaction qualified as a “reorganization” under § 112(g) (1) (B) of the Revenue Act of 1934, which included in the definition of reorganization “the acquisition by one corporation, in exchange solely for all or a part of its voting stock * * * of substantially all the properties of another corporation”. A corporate taxpayer in 1934 had acquired the assets of another corporation in exchange for its own voting common and Class A and Class B stock purchase warrants. The warrants carried the right to buy common at specified prices which increased as time passed until the right expired in 1938. The court said, at pages 198-199 of 315 U.S., at page 550 of 62 S.Ct.:
“Congress has provided that the assets of the transferor corporation must be acquired in exchange ‘solely’ for ‘voting stock’ of the transferee. ‘Solely’ leaves no leeway. Voting stock plus some other consideration does not meet the statutory requirement. * * * ”
and that, with one exception,
“ * * * the requirements of § 112(g) (1) (B) are not met if properties are acquired in exchange for a consideration other than, or in addition to, voting stock. Under that test, this transaction fails to qualify as a ‘reorganization’ under clause B.”
The Southwest case thus may be taken as standing for the proposition that the word “solely” in these reorganization provisions of our income tax laws is to be interpreted literally. To say this, however, is to add nothing helpful upon the issue before us, for our question accepts that standard and is now concerned only with the interpretation of the word “stock”. The court, however, went on to say, at pages 200-201 of 315 U.S., at page 551 of 62 S.Ct.:
“In the second place, the warrants which were issued were not ‘voting stock’. Whatever rights a warrant holder may have ‘to require the obligor corporation to maintain the integrity of the shares’ covered by the warrants * * * he is not a shareholder. * * * His rights are wholly contractual. As stated by Holmes, J., in Parkinson v. West End Street Ry. Co., 173 Mass. 446, 448, 53 N.E. 891, 892, he ‘does not become a stockholder by his contract in equity any more than at law.’ At times, his right may expire on the consolidation of the obligor corporation with another. Id. If at the time he exercises his right there are no authorized and unissued shares to satisfy his demand, he will get damages, not specific performance. * * * Thus he does not have, and may never acquire, any legal or equitable rights in shares of stock. * * * And he cannot assert the rights of a shareholder. * * * Accordingly, the acquisition in this case was not made ‘solely’ for voting stock.”
It is in this language that the parties claim differing support. The government argues that this quotation is particularly pertinent here, that the taxpayer is in the same situation as the warrant holder in Southwest, that her rights are “wholly contractual” and that she cannot assert the rights of a stockholder. The taxpayer points out that the Southwest warrants provided rights to purchase shares at stated prices during a stated time and that the holders had only an option to purchase stock, but that, in contrast, the Certificate holders here were immediately entitled to all the Reserved Shares that might be distributed and needed to take no positive action whatsoever and certainly needed to provide no additional consideration.
The taxpayer also cites the McAbee case, supra, 5 T.C. 1130 (in which the government acquiesced, 1946-2 C.B. 4), as supporting her position. In that case, shares issued by an acquiring corporation were deposited in 1933 with a bank in escrow to protect that corporation against liabilities of the acquired corporation. Each stockholder of the latter received a “Certificate of Beneficial Ownership” reciting the purpose of the escrow and the anticipated delivery of the deposited shares in two later years. It also stated that dividends on the escrow shares would be paid out to the certificate holders. The certificates were assignable. The government claimed that shares delivered out of escrow in 1937 were received as a liquidating dividend of the acquired corporation and were taxable income. The Tax Court held, however, that they had been received by the taxpayer in 1933 as a part of the tax free reorganization in that year under § 112(i) (1) (A) of the Revenue Act of 1932 and said, at page 1150:
“In our opinion the Hemingray stockholders acquired equitable title to the Owens stock in 1933 when it was placed in escrow for their benefit. Thereafter the stock was held merely as security for the performance by Hemingray of its agreement to pay its obligations.”
The taxpayer here claims that any differences between McAbee and the instant case are immaterial and that even though dividends were payable currently on the deposited stock, that stock, as here, could be returned to the acquiring Corporation if the escrow obligations were not fulfilled. The government would distinguish the case on the ground that the certificate holders there owned stock and a specific number of shares thereof, that they received dividends, that the stock was issued and outstanding, and that the escrow was to last a definite and not an indeterminate time.
Both these arguments are strong and we recognize their pertinency. We feel, however, that while the Southwest and McAbee cases are helpful, neither is conclusive here. Certainly, as the taxpayer points out, there are obvious differences between the Southwest warrants and our Certificates of Contingent Interest and, as the government points out, there may well be significant factual distinctions between McAbee and the situation now before us. We also feel that the merger agreement and the provisions of the Certificates are properly interpreted and analyzed not alone within the limitations of their language (possible conflicting results as to which are well illustrated by the arguments of the opposing litigants here) but in the light of other and deeper considerations, namely, purpose, practicality, precedent and substance. We turn to these in order.
1. Purpose. The purpose of the reorganization sections and the purpose of this merger are significant factors. Generally, under our income tax laws, the entire amount of gain realized on the sale or exchange of property is recognized and taxed, §§ 1002, 1001, 61(a) (3), 63 and 1 of the 1954 Code. However, there are certain exceptions to this. Among these is § 354 (a)’s provision with respect to corporate reorganizations. § 1.368-1 (b) of the Regulations, issued with respect to § 368 of the 1954 Code, is entitled “Purpose”. It states the general rule of tax-ability of gain upon exchange of property but then says,
“The purpose of the reorganization provisions of the Internal Revenue Code is to except from the general rule certain specifically described exchanges incident to such readjustments of corporate structures made in one of the particular ways specified in the Code, as are required by business exigencies and which effect only a readjustment of continuing interest in property under modified corporate forms.”
This appears to be a current expression of what has been said in other words by the Supreme Court in opinions concerning earlier Revenue Acts:
“But to do so would be to ignore the purpose of the reorganization sections of the statute, which, as we have said, is that where, pursuant to a plan, the interest of the stockholders of a corporation continues to be definitely represented in substantial measure in a new or different one, then to the extent, but only to the extent, of that continuity of interest, the exchange is to be treated as one not giving rise to present gain or loss.” Groman v. Commissioner, 302 U.S. 82, 89, 58 S.Ct. 108, 112, 82 L.Ed. 63.
See also Nelson Co. v. Helvering, 296 U.S. 374, 377, 56 S.Ct. 273, 80 L.Ed. 281; G. & K. Mfg. Co. v. Helvering, 296 U.S. 389, 391, 56 S.Ct. 276, 80 L.Ed. 291. Assuming, as we must in the light of the government’s concession, that the necessary “business exigency” and a “readjustment of continuing interest in property under a modified corporate form” are both present here with respect to the whole and fractional shares of International common, we fail to see why, in line with these expressed purposes, the same conclusion does not follow with respect to the Certificates of Contingent Interest. Certainly the Certificates here provide “continuity of interest” in the surviving corporation just as do the taxpayer’s whole shares and fractional share. The Certificates can produce nothing other than stock and nothing other than a continuity of interest. The Certificates therefore fit the expressed basic purpose of the tax free provisions of the reorganization sections.
2. Practicality. The practical and realistic aspects of the situation are also persuasive. The parties here were confronted with the problem of Missouri’s potential liabilities. They were faced with the necessity of affording some protection to International with respect to those liabilities and, at the same time, of effecting the desired statutory merger with the consequent business benefits which it was felt would result therefrom. The concept of the Reserved Shares seems to have been an ideal and logical one to solve the problem of these contingent liabilities. While it protected International, at the same time it preserved for the stockholders of Maryland and Missouri the right to their respective portions of any additional shares of International to which they were entitled. Furthermore, it did this in a fair and precise manner by measuring that interest by the eventual outcome of the tax and litigation controversies. Had they chosen to do so, the parties to the reorganization could have resolved the problem arbitrarily by distributing outright something less than the 49,997 Reserved Shares to the Maryland and Missouri stockholders in 1956 at the time of the merger and by letting International then take the benefit or the detriment of any ultimate difference. That the fairer and more exact method was chosen should not result in unfavorable tax consequences.
We emphasize also that, however one may choose to describe it, the Certificate of Contingent Interest represented only International common and nothing else. What the holder possessed was either stock or it was nothing. The number of shares to be forthcoming, it is true, was not determined with exactitude at the time of the merger but that fact does not change the character of the interest. And to argue that because it traded independently of International’s whole shares proves that it is something apart from the stock is, we think, an unrealistic appraisal of. the significance of market action.
3. Precedent. The precedent of the tax treatment of the fractional share is embarrassing to the government’s position. While some of the provisions of the merger agreement and of the Certificate may seem to impinge upon what are regarded as customary and normal attributes of ownership of stock, we regard these as compelled by the practical necessities of the situation here and as not affecting or diminishing the inherent stock character of what the taxpayer received or as granting her different or additional non-stock rights. We are impressed by the fact that similar impinge-ments, for example, voting limitations and the possibility of their being sold after 90 days, are present and equally applicable to the fractional shares but have not been regarded by the government as fatal to the qualification of those fractional shares as “stock” within the meaning of § 354(a) (1), and to their consequent tax free character upon receipt by the Maryland and Missouri stockholders.
4. Substance. It has often been said in tax arguments, and occasionally decided, see Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596; Commissioner v. Court Holding Co., 324 U.S. 331, 334, 65 S.Ct. 707, 89 L.Ed. 981; Kanawha Gas & Utilities Co. v. Commissioner, 5 Cir., 214 F.2d 685, 691, that substance must prevail over form. If this observation has any independent legal force or merit in the determination of tax causes, it compels a conclusion that the substance of the Certificates equates only with stock of International. The rule of substance over form, therefore, this time operates in the taxpayer’s favor.
For these reasons of purpose, practicality, precedent and substance, we hold that the property interest represented by the Certificates of Contingent Interest in this reorganization is “stock” within the meaning of § 354(a) (1) rather than “other property” within the meaning of § 356(a) (1) or “boot” and that the Certificates’ receipt by the taxpayer in 1956 did not result in recognized income to her.
Reversed with directions to enter judgment for the plaintiff in the amount of her claim.
. The merger was in compliance with the laws of the 3 states involved. Each corporation had been in existence for some time, Missouri since 1884, Maryland since 1924, and International since 1941. Stock of International outstanding at the time of the merger was not directly affected by it.
. Ҥ 368. Definitions Relating to Corporate Reorganizations
“ (a) Reorganization.—
“(1) In general. — For purposes of * • * this part, the term ‘reorganization’ means—
“(A) a statutory merger or consolidation; * * * ”
Ҥ 354. Exchanges of Stock and Securities in Certain Reorganizations
“(a) General rule.—
“(1) In general. — No gain or loss shall be recognized if stock
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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sc_caseoriginstate
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13
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state.
JAMES B. BEAM DISTILLING CO. v. GEORGIA et al.
No. 89-680.
Argued October 30, 1990
Decided June 20, 1991
Morton Siegel argued the cause for petitioner. With him on the briefs were John L. Taylor, Jr., and Richard Schoenstadt.
Amelia Waller Baker, Assistant Attorney General of Georgia, argued the cause for respondents. With her on the brief were Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Harrison Kohler, Deputy Attorney General, Daniel M. Formby, Senior Assistant Attorney General, and Warren R. Calvert, Assistant Attorney General.
Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by Mary Sue Terry, Attorney General of Virginia, H. Lane Kneedler, Chief Deputy Attorney General, Gail Starling Marshall, Deputy Attorney General, and Peter W. Low, joined by the Attorneys General for their respective States as follows: Don Siegelman of Alabama, Robert K. Corbin of Arizona, Steve Clark of Arkansas, Duane Woodard, of Colorado, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, William J. Guste, Jr., of Louisiana, James E. Tierney of Maine, J. Joseph Curran, Jr., of Maryland, Hubert H. Humphrey III of Minnesota, Robert J. Del Tufo of New Jersey, Robert Abrams of New York, R. Paul Van Dam of Utah, Jeffrey L. Amestoy of Vermont, and Don Hanaway of Wisconsin; for the State of California et al. by John K. Van de Kamp, Attorney General of California, Richard F. Finn, Supervising Deputy Attorney General, and Eric J. Cojfill, Clarine Nardi Riddle, Attorney General of Connecticut, Robert A. Butterworth, Attorney General of Florida, Warren Price III, Attorney General of Hawaii, James T. Jones, Attorney General of Idaho, Frank J. Kelley, Attorney General of Michigan, Robert M. Spire, Attorney General of Nebraska, Hal Stratton, Attorney General of New Mexico, Anthony J. Celebrezze, Jr., Attorney General of Ohio, Roger A. Telling-huisen, Attorney General of South Dakota, R. Paul Van Dam, Attorney General of Utah, Kenneth 0. Eikenberry, Attorney General of Washington, Roger W. Thompkins, Attorney General of West Virginia, Donald J. Hanaway, Attorney General of Wisconsin, and Herbert O. Reid, Sr.; and for the Council of State Governments et al. by Charles Rothfeld and Benna Ruth Solomon.
Justice Souter
announced the judgment of the Court and delivered an opinion, in which Justice Stevens joins.
The question presented is whether our ruling in Bacchus Imports, Ltd. v. Dias, 468 U. S. 263 (1984), should apply retroactively to claims arising on facts antedating that decision. We hold that application of the rule in that case requires its application retroactively in later cases.
I — H
Prior to its amendment in 1985, Georgia state law imposed an excise tax on imported alcohol and distilled spirits at a rate double that imposed on alcohol and distilled spirits manufactured from Georgia-grown products. See Ga. Code Ann. § 3-4-60 (1982). In 1984, a Hawaii statute that similarly distinguished between imported and local alcoholic products was held in Bacchus to violate the Commerce Clause. Bacchus, 468 U. S., at 273. It proved no bar to our finding of unconstitutionality that the discriminatory tax involved intoxicating liquors, with respect to which the States have heightened regulatory powers under the Twenty-first Amendment. Id., at 276.
In Bacchus’ wake, petitioner James B. Beam Distilling Co., a Delaware corporation and Kentucky bourbon manufacturer, claimed Georgia’s law likewise inconsistent with the Commerce Clause, and sought a refund of $2.4 million, representing not only the differential taxation but the full amount it had paid under § 3-4-60 for the years 1982, 1983, and 1984. Georgia’s Department of Revenue failed to respond to the request, and Beam thereafter brought a refund action against the State in the Superior Court of Fulton County. On cross-motions for summary judgment, the trial court agreed that § 3-4-60 could not withstand a Bacchus attack for the years in question, and that the tax had therefore been unconstitutional. Using the analysis described in this Court’s decision in Chevron Oil Co. v. Huson, 404 U. S. 97 (1971), the court nonetheless refused to apply its ruling retroactively. It therefore denied petitioner’s refund request.
The Supreme Court of Georgia affirmed the trial court in both respects. The court held the pre-1985 version of the statute to have violated the Commerce Clause as, in its words, an act of “simple economic protectionism.” See 259 Ga. 363, 364, 382 S. E. 2d 95, 96 (1989) (citing Bacchtis). But it, too, applied that finding on a prospective basis only, in the sense that it declined to declare the State’s application of the statute unconstitutional for the years in question. The court concluded that but for Bacchus its decision on the constitutional question would have established a new rule of law by overruling past precedent, see Scott v. State, 187 Ga. 702, 2 S. E. 2d 65 (1939) (upholding predecessor to §3-4-60 against Commerce Clause objection), upon which the litigants may justifiably have relied. See 259 Ga., at 365, 382 S. E. 2d, at 96. That reliance, together with the “unjust results” that would follow from retroactive application, was thought by the court to satisfy the Chevron Oil test for prospectivity. To the dissenting argument of two justices that a statute found unconstitutional is unconstitutional ab initio, the court observed that while it had “‘declared statutes to be void from their inception when they were contrary to the Constitution at the time of enactment, . . . those decisions are not applicable to the present controversy, as the original . . . statute, when adopted, was not violative of the Constitution under court interpretations of that period.’” 259 Ga., at 366, 382 S. E. 2d, at 97 (quoting Adams v. Adams, 249 Ga. 477, 478-479, 291 S. E. 2d 518, 520 (1982)).
Beam sought a writ of certiorari from the Court on the retroactivity question. We granted the petition, 496 U. S. 924 (1990), and now reverse.
r“H H-1
In the ordinary case, no question of retroactivity arises. Courts are as a general matter in the business of applying settled principles and precedents of law to the disputes that come to bar. See Mishkin, Foreword: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56, 60 (1965). Where those principles and precedents antedate the events on which the dispute turns, the court merely applies legal rules already decided, and the litigant has no basis on which to claim exemption from those rules.
It is only when the law changes in some respect that an assertion of nonretroactivity may be entertained, the paradigm case arising when a court expressly overrules a precedent upon which the contest would otherwise be decided differently and by which the parties may previously have regulated their conduct. Since the question is whether the court should apply the old rule or the new one, retroactivity is properly seen in the first instance as a matter of choice of law, “a choice . . . between the principle of forward operation and that of relation backward.” Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358, 364 (1932). Once a rule is found to apply “backward,” there may then be a further issue of remedies, i. e., whether the party prevailing under a new rule should obtain the same relief that would have been awarded if the rule had been an old one. Subject to possible constitutional thresholds, see McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18 (1990), the remedial inquiry is one governed by state law, at least where the case originates in state court. See American Trucking Assns., Inc. v. Smith, 496 U. S. 167, 210 (1990) (Stevens, J., dissenting). But the antecedent choice-of-law question is a federal one where the rule at issue itself derives from federal law, constitutional or otherwise. See Smith, supra, at 177-178 (plurality opinion); cf. United States v. Estate of Donnelly, 397 U. S. 286, 297, n. (1970) (Harlan, J., concurring).
As a matter purely of judicial mechanics, there are three ways in which the choice-of-law problem may be resolved. First, a decision may be made fully retroactive, applying both to the parties before the court and to all others by and against whom claims may be pressed, consistent with res judicata and procedural barriers such as statutes of limitations. This practice is overwhelmingly the norm, see Kuhn v. Fairmont Coal Co., 215 U. S. 349, 372 (1910) (Holmes, J., dissenting), and is in keeping with the traditional function of the courts to decide cases before them based upon their best current understanding of the law. See Mackey v. United States, 401 U. S. 667, 679 (1971) (Harlan, J., concurring in judgments in part and dissenting in part). It also reflects the declaratory theory of law, see Smith, supra, at 201 (Scalia, J., concurring in judgment); Linkletter v. Walker, 381 U. S. 618, 622-623 (1965), according to which the courts are understood only to find the law, not to make it. But in some circumstances retroactive application may prompt difficulties of a practical sort. However much it comports with our received notions of the judicial role, the practice has been attacked for its failure to take account of reliance on cases subsequently abandoned, a fact of life if not always one of jurisprudential recognition. See, e. g., Mosser v. Darrow, 341 U. S. 267, 276 (1951) (Black, J., dissenting).
Second, there is the purely prospective method of overruling, under which a new rule is applied neither to the parties in the law-making decision nor to those others against or by whom it might be applied to conduct or events occurring before that decision. The case is decided under the old law but becomes a vehicle for announcing the new, effective with respect to all conduct occurring after the date of that decision. This Court has, albeit infrequently, resorted to pure prospectivity, see Chevron Oil Co. v. Huson, 404 U. S. 97 (1971); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 88 (1982); Buckley v. Valeo, 424 U. S. 1, 142-143 (1976); England v. Louisiana State Bd. of Medical Examiners, 375 U. S. 411, 422 (1964); see also Smith, supra, at 221, n. 11 (Stevens, J., dissenting); Linkletter, supra, at 628, although in so doing it has never been required to distinguish the remedial from the choice-of-law aspect of its decision. See Smith, supra, at 210 (Stevens, J., dissenting). This approach claims justification in its appreciation that “[t]he past cannot always be erased by a new judicial declaration,” Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371, 374 (1940); see also Lemon v. Kurtzman, 411 U. S. 192, 199 (1973) (plurality opinion), and that to apply the new rule to parties who relied on the old would offend basic notions of justice and fairness. But this equitable method has its own drawback: it tends to relax the force of precedent, by minimizing the costs of overruling, and thereby allows the courts to act with a freedom comparable to that of legislatures. See United States v. Johnson, 457 U. S. 537, 554-555 (1982); James v. United States, 366 U. S. 213, 225 (1961) (Black, J., dissenting).
Finally, a court may apply a new rule in the case in which it is pronounced, then return to the old one with respect to all others arising on facts predating the pronouncement. This method, which we may call modified, or selective, prospec-tivity, enjoyed its temporary ascendancy in the criminal law during a period in which the Court formulated new rules, prophylactic or otherwise, to insure protection of the rights of the accused. See, e. g., Johnson v. New Jersey, 384 U. S. 719 (1966); Stovall v. Denno, 388 U. S. 293, 297 (1967); Daniel v. Louisiana, 420 U. S. 31 (1975); see also Smith, supra, at 198 (“During the period in which much of our retroactivity doctrine evolved, most of the Court’s new rules of criminal procedure had expanded the protections available to criminal defendants”). On the one hand, full retroactive application of holdings such as those announced in Miranda v. Arizona, 384 U. S. 436 (1966); Escobedo v. Illinois, 378 U. S. 478 (1964); and Katz v. United States, 389 U. S. 347 (1967), would have “seriously disrupted] the administration of our criminal laws [,]... requiring] the retrial or release of numerous prisoners found guilty by trustworthy evidence in conformity with previously announced constitutional standards.” Johnson, supra, at 731. On the other hand, retroactive application could hardly have been denied the litigant in the law-changing decision itself. A criminal defendant usually seeks one thing only on appeal, the reversal of his conviction; future application would provide little in the way of solace. In this context, without retroactivity at least to the first successful litigant, the incentive to seek review would be diluted if not lost altogether.
But selective prospectivity also breaches the principle that litigants in similar situations should be treated the same, a fundamental component of stare decisis and the rule of law generally. See R. Wasserstrom, The Judicial Decision 69-72 (1961). “We depart from this basic judicial tradition when we simply pick and choose from among similarly situated defendants those who alone will receive the benefit of a ‘new’ rule of constitutional law.” Desist v. United States, 394 U. S. 244, 258-259 (1969) (Harlan, J., dissenting); see also Von Moschzisker, Stare Decisis in Courts of Last Resort, 37 Harv. L. Rev. 409, 425 (1924). For this reason, we abandoned the possibility of selective prospectivity in the criminal context in Griffith v. Kentucky, 479 U. S. 314, 328 (1987), even where the new rule constituted a “clear break” with previous law, in favor of completely retroactive application of all decisions to cases pending on direct review. Though Griffith was held not to dispose of the matter of civil retroactivity, see id., at 322, n. 8, selective prospectivity appears never to have been endorsed in the civil context. Smith, 496 U. S., at 200 (plurality opinion). This case presents the issue.
Ill
Both parties have assumed the applicability of the Chevron Oil test, under which the Court has accepted prospectivity (whether in the choice-of-law or remedial sense, it is not clear) where a decision displaces a principle of law on which reliance may reasonably have been placed, and where pros-pectivity is on balance warranted by its effect on the operation of the new rule and by the inequities that might otherwise result from retroactive application. See Chevron Oil, 404 U. S., at 106-107. But we have never employed Chevron Oil to the end of modified civil prospectivity.
The issue is posed by the scope of our disposition in Bacchus. In most decisions of this Court, retroactivity both as to choice of law and as to remedy goes without saying. Although the taxpaying appellants prevailed on the merits of their Commerce Clause claim, however, the Bacchus Court did not grant outright their request for a refund of taxes paid under the law found unconstitutional. Instead, we remanded the case for consideration of the State’s arguments that appellants were “not entitled to refunds since they did not bear the economic incidence of the tax but passed it on as a separate addition to the price that their customers were legally obligated to pay.” Bacchus, 468 U. S., at 276-277. “These refund issues, . . . essentially issues of remedy,” had not been adequately developed on the record nor passed upon by the state courts below, and their consideration may have been intertwined with, or obviated by, matters of state law. Id., at 277.
Questions of remedy aside, Bacchus is fairly read to hold as a choice of law that its rule should apply retroactively to the litigants then before the Court. Because the Bacchus opinion did not reserve the question whether its holding should be applied to the parties before it, cf. American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 297-298 (1987) (remanding case to consider whether ruling “should be applied retroactively and to decide other remedial issues”), it is properly understood to have followed the normal rule of retroactive application in civil cases. If the Court were to have found prospectivity as a choice-of-law matter, there would have been no need to consider the pass-through defense; if the Court had reserved the issue, the terms of the remand to consider “remedial” issues would have been incomplete. Indeed, any consideration of remedial issues necessarily implies that the precedential question has been settled to the effect that the rule of law will apply to the parties before the Court. See McKesson, 496 U. S., at 46-49 (pass-through defense considered as remedial question). Because the Court in Bacchus remanded the case solely for consideration of the pass-through defense, it thus should be read as having retroactively applied the rule there decided. See also Williams v. Vermont, 472 U. S. 14, 28 (1985); Exxon Corp. v. Eagerton, 462 U. S. 176, 196-197 (1983); cf. Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 817 (1989).
Bacchus thus applied its own rule, just as if it had reversed and remanded without further ado, and yet of course the Georgia courts refused to apply that rule with respect to the litigants in this case. Thus, the question is whether it is error to refuse to apply a rule of federal law retroactively after the case announcing the rule has already done so. We hold that it is, principles of equality and stare decisis here prevailing over any claim based on a Chevron Oil analysis.
Griffith cannot be confined to the criminal law. Its equality principle, that similarly situated litigants should be treated the same, carries comparable force in the civil context. See Estate of Donnelly, 397 U. S., at 296 (Harlan, J., concurring). Its strength is in fact greater in the latter sphere. With respect to retroactivity in criminal cases, there remains even now the disparate treatment of those cases that come to the Court directly and those that come here in collateral proceedings. See Griffith, supra, at 331-332 (White, J., dissenting). Whereas Griffith held that new rules must apply retroactively to all criminal cases pending on direct review, we have since concluded that new rules will not relate back to convictions challenged on habeas corpus. Teague v. Lane, 489 U. S. 288 (1989). No such difficulty exists in the civil arena, in which there is little opportunity for collateral attack of final judgments.
Nor is selective prospectivity necessary to maintain incentives to litigate in the civil context as it may have been in the criminal before Griffith’s, rule of absolute retroactivity. In the civil context, “even a party who is deprived of the full retroactive benefit of a new decision may receive some relief.” Smith, 496 U. S., at 198-199. Had the appellants in Bacchus lost their bid for retroactivity, for example, they would nonetheless have won protection from the future imposition of discriminatory taxes, and the same goes for the petitioner here. Assuming that pure prospectivity may be had at all, moreover, its scope must necessarily be limited to a small number of cases; its possibility is therefore unlikely to deter the broad class of prospective challengers of civil precedent. See generally Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va. L. Rev. 201, 215 (1965).
Of course, retroactivity in civil cases must be limited by the need for finality, see Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371 (1940); once suit is barred by res judicata or by statutes of limitation or repose, a new rule cannot reopen the door already closed. It is true that one might deem the distinction arbitrary, just as some have done in the criminal context with respect to the distinction between direct review and habeas: why should someone whose failure has otherwise become final not enjoy the next day’s new rule, from which victory would otherwise spring? It is also objected that in civil cases unlike criminal there is more potential for litigants to freeload on those without whose labor the new rule would never have come into being. (Criminal defendants are already potential litigants by virtue of their offense, and invoke retroactivity only by way of defense; civil beneficiaries of new rules may become litigants as a result of the law change alone, and use it as a weapon.) That is true of the petitioner now before us, which did not challenge the Georgia law until after its fellow liquor distributors had won their battle in Bacchus. To apply the rule of Bacchus to the parties in that case but not in this one would not, therefore, provoke Justice Harlan’s attack on modified prospectivity as “[s]imply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases to flow by unaffected by ±hat new rule.” Mackey, 401 U. S., at 679 (opinion concurring in judgments in part and dissenting in part); see also Smith, supra, at 214-215 (Stevens, J., dissenting). Beam had yet to enter the waters at the time of our decision in Bacchus, and yet we give it Bacchus’ benefit. Insofar as equality drives us, it might be argued that the new rule should be applied to those who had toiled and failed, but whose claims are now precluded by res judicata; and that it should not be applied to those who only exploit others’ efforts by litigating in the new rule’s wake.
As to the former, independent interests are at stake; and with respect to the latter, the distinction would be too readily and unnecessarily overcome. While those whose claims have been adjudicated may seek equality, a second chance for them could only be purchased at the expense of another principle. “ ‘Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of that contest, and that matters once tried shall be considered forever settled as between the parties.’ ” Federated Department Stores, Inc. v. Moitie, 452 U. S. 394, 401 (1981) (quoting Baldwin v. Iowa State Traveling Men’s Assn., 283 U. S. 522, 525 (1931)). Finality must thus delimit equality in a temporal sense, and we must accept as a fact that the argument for uniformity loses force over time. As for the putative hangers-on, they are merely asserting a right that the Court has told them is theirs in law, that the Court has not deemed necessary to apply on a prospective basis only, and that is not otherwise barred by state procedural requirements. They cannot be characterized as freeloaders any more than those who seek vindication under a new rule on facts arising after the rule’s announcement. Those in each class rely on the labors of the first successful litigant. We might, of course, limit retroactive application to those who at least tried to fight their own battles by litigating before victory was certain. To this possibility, it is enough to say that distinguishing between those with cases pending and those without would only serve to encourage the filing of replicative suits when this or any other appellate court created the possibility of a new rule by taking a case for review.
Nor, finally, are litigants to be distinguished for choice-of-law purposes on the particular equities of their claims to prospectivity: whether they actually relied on the old rule and how they would suffer from retroactive application of the new. It is simply in the nature of precedent, as a necessary component of any system that aspires to fairness and equality, that the substantive law will not shift and spring on such a basis. To this extent, our decision here does limit the possible applications of the Chevron Oil analysis, however irrelevant Chevron Oil may otherwise be to this case. Because the rejection of modified prospectivity precludes retroactive application of a new rule to some litigants when it is not applied to others, the Chevron Oil test cannot determine the choice of law by relying on the equities of the particular case. See Simpson v. Director, Office of Workers’ Compensation Programs, United States Dept. of Labor, 681 F. 2d 81, 85-86 (CA1 1982), cert. denied sub nom. Bath Iron Works Corp. v. Director, Office of Workers’ Compensation Programs, United States Dept. of Labor, 459 U. S. 1127 (1983); see also Note, 1985 U. Ill. L. Rev. 117, 131-132. Once retroactive application is chosen for any assertedly new rule, it is chosen for all others who might seek its prospective application. The applicability of rules of law is not to be switched on and off according to individual hardship; allowing relitigation of choice-of-law issues would only compound the challenge to the stabilizing purpose of precedent posed in the first instance by the very development of “new” rules. Of course, the generalized enquiry permits litigants to assert, and the courts to consider, the equitable and reliance interests of parties absent but similarly situated. Conversely, nothing we say here precludes consideration of individual equities when deciding remedial issues in particular cases.
<1
The grounds for our decision today are narrow. They are confined entirely to an issue of choice of law: when the Court has applied a rule of law to the litigants in one case it must do so with respect to all others not barred by procedural requirements or res judicata. We do not speculate as to the bounds or propriety of pure prospectivity.
Nor do we speculate about the remedy that may be appropriate in this case; remedial issues were neither considered below nor argued to this Court, save for an effort by petitioner to buttress its claim by reference to our decision last Term in McKesson. As we have observed repeatedly, federal “issues of remedy . . . may well be intertwined with, or their consideration obviated by, issues of state law.” Bacchus, 468 U. S., at 277. Nothing we say here deprives respondents of their opportunity to raise procedural bars to recovery under state law or demonstrate reliance interests entitled to consideration in determining the nature of the remedy that must be provided, a matter with which McKes-son did not deal. See Estate of Donnelly, 397 U. S., at 296 (Harlan, J., concurring); cf. Lemon, 411 U. S., at 203.
The judgment is reversed, and the case is remanded for further proceedings.
It is so ordered.
Although petitioner expends some effort, see Brief for Petitioner 5-8, in asserting the uneonstitutionality under Bacchus of the Georgia law as amended, see Ga. Code Ann. § 3-4-60 (1990), an argument rejected by the Georgia Supreme Court in Heublein, Inc. v. State, 256 Ga. 578, 351 S. E. 2d 190 (1987), that issue is neither before us nor relevant to the issue that is.
In fact, the state defendant in Bacchus argued for pure prospectivity under the criteria set forth in Chevron Oil Co. v. Huson, 404 U. S. 97 (1971). See Brief for Appellee in Bacchus Imports Ltd. v. Dias, O. T. 1983, No. 82-1565, p. 19. It went on to argue that “even if” the challenged tax were held invalid and the decision were not limited to prospective application, the challengers should not be entitled to refunds because any taxes paid would have been passed through to consumers. Id,., at 46. Though unnecessary to our ruling here, the prospectivity issue can thus be said actually to have been litigated and by implication actually to have been decided by the Court by the fact of its consideration of the pass-through defense. See Clemons v. Mississippi, 494 U. S. 738, 747-748, n. 3 (1990).
Question: What is the state of the court in which the case originated?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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songer_respond2_3_3
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F
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant.
UNITED STATES of America and Kenneth J. Kalemba, Special Agent, Internal Revenue Service, v. AMERADA HESS CORPORATION, Appellant.
No. 79-1317.
United States Court of Appeals, Third Circuit.
Argued Oct. 19, 1979.
Decided Jan. 18, 1980.
Stuart K. Radick, Kelsey, Kelsey & Rad-ick, Trenton, N. J., Robert G. Morvillo (argued), Maurice M. McDermott, Obermaier, Morvillo, Abramowitz & Fitzpatrick, New York City, Roger B. Oresman, Russell E. Brooks, Milbank, Tweed, Hadley & McCloy, New York City, for appellant Amerada Hess Corp.
Robert Del Tufo, U. S. Atty., Newark, N. J., M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews, Charles E. Brookhart, R. Bruce Johnson (argued), Attys., Tax Div., Dept. of Justice, Washington, D. C., for appellees.
Before GIBBONS and HIGGINBOTHAM, Circuit Judges, and ZIEGLER, District Judge.
Honorable Donald E. Ziegler, United States District Judge for the Western District of Pennsylvania, sitting by designation.
OPINION OP THE COURT
GIBBONS, Circuit Judge.
Amerada Hess Corporation (Amerada) appeals from a final order of the district court directing enforcement, pursuant to 26 U.S.C. §§ 7402(b), 7604(a) (1967), of two Internal Revenue Service (IRS) summonses. Amerada resisted enforcement: (1) because the summonses were issued for an improper criminal investigative purpose; and (2) because one summons sought information protected by the attorney-client privilege and the work product rule. The district court rejected these contentions. We affirm.
I. Pre-Enforcement Proceedings
In May 1975, a revenue agent of the Audit Division (presently the Examinations Division) of IRS commenced a civil audit of the federal tax returns of Amerada for the tax years 1972 through 1974. The IRS investigation coincided with what was apparently a much larger investigation of certain activities of major corporations, involving possible corporate payments to foreign officials and citizens which were suspected of having been improperly treated by the corporations on their tax returns. Simultaneously, the Securities Exchange Commission had filed lawsuits against several major corporations, three of which, like Amer-ada, were oil companies, alleging the failure of the corporations to disclose improper foreign payments. Amerada’s outside counsel, Milbank, Tweed, Hadley & McCloy (Mil-bank), advised Amerada to conduct an internal investigation to inform the corporate management of any such foreign payments Amerada might have made. In April 1976, Amerada established a special internal investigative committee, consisting of four outside directors, for which Milbank conducted a series of interviews of Amerada officers and employees. Upon completion of this internal investigation, the special committee filed its report with Amerada’s board of directors. The committee’s report revealed what were termed as “questionable practices,” including payments and gifts to local officials, political candidates, and foreign officials, totalling approximately $12,000. In that section of the committee’s report to the board of directors which dealt with the procedure of the investigation it was reported that fifty of Amerada’s officers and employees had been interviewed by Milbank. The committee’s report indicated in a footnote that a list of the names of the persons interviewed was attached. For some reason, however, the list was not attached to the report and the footnote was not corrected. It is not disputed that such a list was in fact included with the report of Milbank to the special committee and is in Amerada’s possession. Amerada furnished the revenue agent with a copy of the special committee report to its board of directors, but not with the Milbank report to the committee or the list of persons Milbank had interviewed. Amerada also furnished the revenue agent with answers to eleven standard questions which the IRS had formulated and addressed to major corporations seeking information about improper payments.
In June 1977, as a result of the information in the special committee report and of Amerada’s answers to the eleven questions, the revenue agent suspended his examination and made a fraud referral to the Intelligence Division of IRS, now designated the Criminal Investigation Division. Special Agent Kenneth J. Kalemba was assigned to join the Amerada case to investigate possible criminal violations of the Internal Revenue Code in addition to civil liability for unpaid taxes and penalties. Kalemba, after evaluating the Audit Division’s reference, requested, and received, from his superior in the Intelligence Division permission to open a file on Amerada.
On September 5, 1977, Special Agent Ka-lemba, his Intelligence Division supervisor John Kuper, and William Huntley of the Audit Division, met with representatives of Amerada, including counsel. In this meeting the Amerada representatives were told by representatives of the IRS that the civil audit would, if Amerada preferred, be suspended pending Kalemba’s criminal investigation, but that if Amerada preferred to have the civil audit continue document requests made by the revenue agent and those made by the Special Agent would be separately identified. During the meeting Special Agent Kalemba requested a list of documents. The list was prepared by him and not by the revenue agent. Amerada’s counsel requested time to consider the request. Some time after the September meeting a representative of Amerada informed Kalemba that before it would respond to his document request it wished to seek review by higher authorities in the IRS of the decision to initiate a criminal investigation. In October 1977, Amerada’s counsel asked David E. Gaston, Chief of the IRS Criminal Tax Division, to review the matter. Mr. Gaston referred the request to the Chief of the Intelligence Division, who in turn referred it to the District Director of the Newark District. A meeting with the District Director in Newark was scheduled for mid-January 1978. Before it took place Special Agent Kalemba issued the two summonses for which enforcement is sought. They require production of the same documents Kalemba requested at the September 5, 1977, meeting. One summons asks for production of the list of names of persons interviewed by Milbank on behalf of the special committee. The second asks for nine categories of Amerada corporate documents. Amerada resisted enforcement of both summonses as issued for an improper criminal purpose, and of the first as requiring the production of protected materials.
II. Enforcement Proceedings
When Amerada refused to comply with the summonses the United States and Special Agent Kalemba filed a Section 7402(b) and 7604(a) complaint and obtained an order directing Amerada to show cause why it should not be ordered to comply. Amerada filed an answer and opposing affidavits. It also served on IRS employees subpoenas duces tecum for the production of the entire case file of the Intelligence Division for the tax years in issue, and notices of deposition of various IRS employees. The government moved to quash the subpoenas and for a protective order with respect to the depositions. The trial court permitted a deposition of Special Agent Kalemba. It reserved determination of the motion to quash subpoenas, requiring that the witnesses on which they were served remain available for a hearing on the order to show cause. At that hearing Special Agent Kalemba testified and was extensively cross-examined. His testimony establishes that the IRS decision to open a criminal investigation was made as a result of the disclosures in the special committee report to Amera-da’s board of directors, that the revenue agent’s audit was suspended at the time the IRS summonses were issued, that the information sought is not in possession of the IRS, that it is information relevant to the purpose of determining Amerada’s tax liability, and that because such tax liability had not yet been determined he had not yet decided whether or not to recommend prosecution. The court also heard the testimony of two other persons: revenue agent Caputo of the Audit Division, who testified that a civil audit of Amerada for the years in question was incomplete; and Roger B. Oresman, an attorney with Milbank, and a member of the Amerada special committee, who testified primarily about the creation of the special committee and the manner in which Milbank conducted an investigation on its behalf. Oresman’s testimony established that the list of interviewees, which is the subject of the first IRS summons, was annexed to a report by Milbank to the special committee. Finally, the trial court examined, in camera, the Intelligence Division file on Amerada.
The trial court held that no additional discovery was appropriate in order to rule on Amerada’s LaSaile-Genser objection, that the objection was meritless, and that neither the attorney-client privilege, nor the work product rule, prevented disclosure of the list of interviewees.
III. The LaSaile-Genser Objection
In United States v. Genser, 595 F.2d 146, 152 (3d Cir. 1979) (Genser II) this court discussed the circumstances in which a taxpayer would be entitled to discovery against the government in order to meet the burden of overcoming the presumption of validity applicable to an IRS summons issued prior to a recommendation of prosecution. We held:
At a minimum, the taxpayer should be entitled to discover the identities of the investigating agents, the date the investigation began, the dates the agent or agents filed reports recommending prosecution, the date the district chief of the Intelligence Division or Criminal Investigation Division reviewed the recommendation, the date the Office of Regional Counsel referred the matter for prosecution, and the dates of all summonses issued under 26 U.S.C. § 7602. Furthermore, the taxpayer should be entitled to discover the nature of any contacts, relating to and during the investigation, between the investigating agents and officials of the Department of Justice.
Where this information or other evidence introduced by the taxpayer reveals (1) that the IRS issued summonses after the investigating agents recommended prosecution, (2) that inordinate and unexplained delays in the investigation transpired, or (3) that the investigating agents were in contact with the Department of Justice, the district court must allow the taxpayer to investigate further. In proper cases, this investigation could include the opportunity to examine the IRS agents or officials involved, or to discover documents. Such examination/discovery, however, should be carefully tailored to meet the purpose of the inquiry. On the other hand, where this information indicates that none of these three conditions are present, the district court need inquire no further.
In this case Amerada knew the identities of the investigating agents, the date their investigation began, and the fact that no recommendation for prosecution had yet been made. It deposed Special Agent Kalemba, and neither in his deposition, nor in cross-examination, was any information elicited suggesting any communication between the IRS agents and the Department of Justice. The only evidence of delay in the. investigation is delay occasioned by Amerada’s effort to have it terminated. We are dealing with summonses issued prior to the time the investigating agents made a determination on prosecution. Under Genser II the trial court’s conclusion that no further discovery was in order was a permissible exercise of its discretion. See also United States v. Serubo, 604 F.2d at 813.
Amerada contends that it has shown an improper purpose because the summonses were for information sought by Special Agent Kalemba, not by the revenue agent in charge of the audit. It argues that the IRS had made an institutional decision to divide its investigation into separate civil and criminal segments, and that as a matter of law any summonses issued at the behest of the special agent conducting the criminal segment must be improper. That argument proves too much. Clearly the IRS has, in all cases, made an institutional decision to divide its investigations into civil and criminal segments. The very existence of separate Examinations and Criminal Investigation Divisions demonstrates such a decision. But the fact that summonses are issued for criminal enforcement purposes is not dispositive. The use of summonses after the abandonment of a civil purpose is the evil against which the LaSalle-Genser rule guards. It is undisputed that Amerada’s civil liability is still an open question. See United States v. Garden State Nat. Bank, 607 F.2d at 65 n.3, 73.
Amerada also contends that it has shown the absence of any civil purposes, because the report of the special committee shows only $12,000 in questionable expenditures, while in the years in question it paid $57.50 million in federal income taxes. From the de minimus nature of the possible civil liability for additional taxes it would have the trial court conclude that only criminal prosecution, not tax liability, was the IRS institutional posture. The trial court declined to draw that inference, observing that while the report of the special committee discussed only $12,000 in questionable expenditures, the IRS was entitled to make its own evaluation of the utility of a more thorough inquiry. Certainly, the special committee’s report was in the institutional view of IRS no less self-serving than Amer-ada’s original tax returns.
Thus, we conclude that the taxpayer failed to meet the burden of overcoming the presumption of validity attaching to these two pre-recommendation subpoenas. That conclusion disposes of the challenge to the summonses seeking the company documents listed in footnote 1, supra. Amerada does not contend that any privilege or work product rule applies to them.
IV. Claims of Privilege
The first summons, however, calling for the list of persons interviewed by Milbank on behalf of the special committee, is resisted on privilege and work product rule grounds to which we now turn.
A. Attorney-Client Privilege
As noted above, Mr. Oresman’s testimony established that Milbank prepared a report for the special committee. The IRS does not seek that report. Annexed to it, however, was a list of the Amerada employees who were interviewed by Milbank. Amera-da contends that the annexed list was an integral part of a communication from its attorney giving it legal advice. The trial court rejected that contention on two grounds. It ruled: that the attorney-client privilege was inapplicable to communications from the attorney to the client; and that the list was, in any event, not a privileged communication. While we disagree with the trial court on the first ground, we conclude that it was correct on the second.
Although the full report from Mil-bank to the special committee is not before us, the record suggests that it was in the nature of legal advice or opinion to persons in Amerada’s management authorized to seek and act upon such advice or opinion. Legal advice or opinion from an attorney to his client, individual or corporate, has consistently been held by the federal courts to be within the protection of the attorney-client privilege. Mead Data Central, Inc. v. U. S. Dept. of Air Force, 184 U.S.App.D.C. 350, 362 n. 25, 566 F.2d 242, 254 n. 25 (D.C. Cir. 1977); Garner v. Wolfinbarger, 430 F.2d 1093, 1096 n. 7 (5th Cir. 1970), cert. den. sub nom., Garner v. First Amer. Life Ins. Co., 401 U.S. 974, 91 S.Ct. 1191, 28 L.Ed.2d 323 (1971); Schwimmer v. United States, 232 F.2d 855, 863 (8th Cir.), cert. denied, 352 U.S. 833, 77 S.Ct. 48, 1 L.Ed.2d 52 (1956); 8 in 1 Pet. Products, Inc. v. Swift & Co., 218 F.Supp. 253 (S.D.N.Y.1963); Georgia-Pacific Plywood Co. v. United States Plywood Corp., 18 F.R.D. 463, 464 (S.D.N.Y.1956). Two reasons have been advanced in support of the two-way application of the privilege. The first is the necessity of preventing the use of an attorney’s advice to support inferences as to the content of confidential communications by the client to the attorney. 8 Wigmore on Evidence § 2320 (McNaughton Rev. 1961). The second is that, independent of the content of any client communication, legal advice given to the client should remain confidential. See United States v. Bartone, 400 F.2d 459, 461 (6th Cir. 1978), cert. denied, 393 U.S. 1027, 89 S.Ct. 631, 21 L.Ed.2d 571 (1979). To the extent that the trial court predicated its ruling on the general inapplicability of the privilege to communications from the attorney to the client we disapprove of it.
We agree, however, with the court’s alternative holding with respect to the list of interviewees. Neither of the usually advanced reasons for the application of the privilege applies to that list. Certainly the list, itself, is not legal advice, and Amerada does not so contend. It does urge, however, that the list can support an inference as to the contents of a confidential communication from Amerada to the attorney. That argument is foreclosed by our recent decision in In re Grand Jury Investigation (Sun Company, Inc.), 599 F.2d 1224 (3d Cir. 1979). In that case we adopted for this circuit Judge Kirkpatrick’s control group test as to what communications by corporate officers to corporate counsel are covered by the attorney-client privilege. Applying that test to questionnaires and memoranda compiled by a law firm in the course of an investigation into possible illegal payments made by Sun’s employees in connection with its foreign operations, we held that because the interviewed employees were not members of the relevant control group the contents of their communications to counsel were not protected by the attorney-client privilege. 599 F.2d at 1237. In so ruling, Chief Judge Seitz, for the court, relied upon Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947), which held that the results of an attorney’s investigation in preparation for litigation, and in particular, the results of his interviews with employee witnesses, were protected only by the qualified work product rule, not by the absolute attorney-client privilege. Obviously, both in Hickman v. Taylor and in Sun Company, Inc. disclosure of the witness’ statements necessarily disclosed that someone in sufficient authority to deal with the attorney had informed him which employees might have knowledge of relevant facts. The list itself gives no clue as to what anyone in the Amerada control group told Milbank about any potential witness. A rule permitting disclosure of the statements, but preventing disclosure of the list of potential witnesses, would advance none of the purposes of the attorney-client privilege. Indeed, the client could be asked in an appropriate proceeding to disclose the names of all persons who might have relevant information. Such an inquiry could not be foreclosed by the stratagem of making up such a list beforehand and furnishing it to the attorney. Amerada responds that an IRS summons for documents cannot compel a taxpayer to create a new document in response to that summons. While that may be so, it really doesn’t enlighten on the subject of privilege. There is an extant list, and that list contains no information that can be maintained in confidence. Amerada employees could be summonsed pursuant to section 7602(2), 26 U.S.C. § 7602(2) (1976), to give testimony under oath. The suggestion that the court should have denied enforcement of the summons for the list, and relegated IRS to a summons for testimony in which the same names must be disclosed is entirely too formalistic to be taken seriously. The trial court did not err in holding that the list was not the kind of communication protected by the attorney-client privilege.
B. Work Product
Amerada also resisted production of the list attached to its report to the special committee as protected work product. The government urged that the work product protection of Hickman v. Taylor was solely a limitation on pretrial discovery, not a qualified evidentiary privilege, and that it was, therefore, wholly inapplicable to IRS summons enforcement proceedings. There is a split of circuit court authority on whether the work product rule applies to IRS investigations. See United States v. Nobles, 422 U.S. 225, 247 n. 6, 95 S.Ct. 2160, 2167 n. 6, 45 L.Ed.2d 141 (1975). Compare United States v. Upjohn Co., 600 F.2d 1223 (6th Cir. 1979) (work product doctrine is not applicable to section 7602 summonses); and United States v. McKay, 372 F.2d 174, 176 (5th Cir. 1967) (Maris, J., application of work product rule to IRS summons proceedings doubted), with United States v. Brown, 478 F.2d 1038, 1040-41 (7th Cir. 1973) (work product applies to section 7602 summons). This court has not previously passed upon the question, but the trial court assumed that we would agree with the holding in United States v. Brown that the rule applied. Although we have not answered the question of applicability of the work product rule to section 7602 cases, Sun Company, Inc., 599 F.2d 1224, is so closely analogous that it must be deemed controlling. In that case we held that work product protection could be claimed in a grand jury investigation. The government’s argument for its inapplicability to IRS summons proceedings is predicated upon the inquisitorial, rather than adversarial, nature of those proceedings. Grand jury investigations are equally inquisitorial, and the interest of the federal government in discovering instances of violations of the criminal law is at least as great as its interest in discovering amounts due to it under the Internal Revenue Code. It would be quite anomalous to hold that the work product rule applied to a grand jury inquisition, but not to an IRS section 7602 inquisition. We hold, therefore, that work product protection can be asserted in resisting enforcement of an IRS summons.
Sun Company, Inc., 599 F.2d 1224, also enlightens on the application of the work product rule to the summonsed list. Indisputably, the Milbank report qualifies as material prepared or collected in anticipation of possible litigation. 599 F.2d at 1228-29. Indisputably, also, the protection is qualified, and demands a particularized determination with respect to each piece of information sought. 599 F.2d at 1230-31, 1232-33. Thus, neither the fact that the list was compiled by Milbank, nor the fact that it was attached to a report prepared in anticipation of possible litigation is dispositive. Rather, application of the rule depends upon the nature of the document, the extent to which it may directly or indirectly reveal the attorney’s mental processes, the likely reliability of its reflection of witness’ statements, the degree of danger that it will convert the attorney from advocate to witness, and the degree of availability of the information from other sources. 599 F.2d at 1231.
In this case the list of interviewees is just that, a list. It does not directly or indirectly reveal the mental processes of the Milbank attorneys. It furnishes no information as to the content of any statement. There is no realistic possibility that its production will convert any member of the Milbank firm from advocate to witness. None of the policy reasons for protection of work product, other than the fact of its initial compilation by Milbank, applies. It is true, as we point out in the discussion of the attorney-client privilege, that the IRS could compile its own list by taking witness testimony. Possibly it could compile a similar list as a result of field work. Thus the need for production of the list is not as compelling as was the need in Sun Company, Inc. for the production of the statement of a deceased Sun employee. But as Chief Judge Seitz in that case makes clear, application of the qualified work product protection involves a balancing of competing considerations. Where, as here, the work product in question is of rather minimal substantive content, and presents none of the classic dangers to which the Hickman v. Taylor rule is addressed, the government’s showing of need can be comparatively lower. Avoidance of the time and effort involved in compiling a similar list from other sources is, in this case, a sufficient showing of need. The district court did not err in concluding that, while the work product rule applied in IRS summons enforcement cases, and the list was work product, the qualified protection in this instance yielded to the IRS’s need to get on with its investigation.
V. Conclusion
The order appealed from, directing Amer-ada to comply with two IRS summonses served on it on January 12, 1978, will be affirmed in all respects.
. The second summons requests:
1. All documents and records relating to payments by taxpayer of $613 in 1973, and $718 in 1974, to Husseim Awadba, a resident of Abu Dhabi.
2. All documents and records for purchases of pen and pencil sets ($748), vases, ashtrays, and crystal ($1,158), and a television set ($1,200) made by taxpayer and given to government employees of Abu Dhabi.
3. All documents and records for payments made by taxpayer totalling $2,485 in 1972, $2,810 in 1973, and $2,545 in 1974 to members of the local fire and police departments that were recorded as cleaning services.
4. The aircraft records or log books of taxpayer’s airplanes, showing arrivals, destinations, passengers, and purposes of trips on several specific days during 1971 through 1974.
5. All employment contracts or agreements between taxpayer and Azar-Pey and Chadami-Navai, both Iranian government officials, all documents and records relating to payments made to them, and all executive files and inter-departmental memoranda pertaining to their employment by taxpayer for the years 1972, 1973, and 1974.
6. All documents and records pertaining to taxpayer’s contributions to U. S. Virgin Islands Congressional Delegate DeLugo, the Julia Butler Hansen for Congress Committee, and Virgin Islands Senator Rouss, all in 1972.
7. All employment contracts or agreements between taxpayer and Dr. Raymond Burneo, Ecuadorian Ambassador to West Germany, as well as all documents and records relating to payments to him for 1972, 1973, and 1974.
8. All employment contracts or agreements between taxpayer and J. Yagchi, a resident of Abu Dhabi, as well as all documents and records pertaining to payments made to him during the years 1972, 1973, and 1974.
9. All documents and records pertaining to an entry totalling $1,250,000 by the Hess Oil Virgin Islands Corporation which was categorized as contributions and donations to the Virgin Islands Government by the Hess Oil Virgin Islands Corporation in 1973.
. See United States v. LaSalle National Bank, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978); United States v. Garden State Nat. Bank, 607 F.2d 61 (3d Cir. 1979); United States v. Serubo, 604 F.2d 807 (3d Cir. 1979); United States v. Genser, 595 F.2d 146 (3d Cir. 1979) (Genser II); United States v. Genser, 582 F.2d 292 (3d Cir. 1978) (Genser I).
. See United States v. Brown, 536 F.2d 117 (6th Cir. 1976). But see United States v. Rosinsky, 547 F.2d 249 (4th Cir. 1977). The question is pending before the Supreme Court in United States v. Euge, 441 U.S. 942, 99 S.Ct. 2159, 60 L.Ed.2d 1044 (1979), on certiorari from the en banc decision of the Eighth Circuit in United States v. Euge, 587 F.2d 25 (8th Cir. 1978).
Question: This question concerns the second listed respondent. 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:
|
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.
James E. WILLIAMS, Plaintiff-Appellant, v. Nancy ANDERSON and S.D. Parwatikar, Defendants-Appellees.
No. 90-2487.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 20, 1991.
Decided April 9, 1992.
Stephen C. Mudge, Reed, Armstrong, Gorman, Coffey, Thomson, Gilbert & Mudge, Edwardsville, Ill., Curtis L. Blood, argued, Collinsville, Ill., for James E. Williams.
Karen Michels Caille, Asst. Atty. Gen., Alison E. O’Hara, argued, Office of the Attorney General, Civil Appeals Div., Chicago, Ill., for Nancy Anderson and S.D. Parwatikar.
Before BAUER, Chief Judge, RIPPLE, Circuit Judge, and FAIRCHILD, Senior Circuit Judge.
RIPPLE, Circuit Judge.
While in custody at the Menard Correctional Center in Illinois, James Williams was given an injection of Haldol, an anti-psychotic drug, against his will. Mr. Williams brought suit under 42 U.S.C. § 1983 against Dr. S.D. Parwatikar, the staff psychiatrist who prescribed the drug, and Nancy Anderson, the staff nurse who administered it, for alleged violations of his rights under the Eighth and Fourteenth Amendments. The district court granted the defendants’ motion for summary judgment. For the following reasons, we affirm in part and vacate and remand in part.
I
BACKGROUND
A. Facts
James Williams was placed in the psychiatric unit at Menard Correctional Center on August 5, 1985. On August 7, Mr. Williams was examined by Dr. S.D. Parwa-tikar, a staff psychiatrist. In his post-examination order, Dr. Parwatikar prescribed an intra-muscular administration of ten milligrams (10 mg) of Haldol to Mr. Williams, “PRN if Pt gets violent.” In the affidavits submitted in connection with the defendants’ motion for summary judgment, Dr. Parwatikar asserts that he wrote this order “with due consideration of plaintiff’s mental condition and history of violent behavior,” “as a means of treating violent outbursts.” R.61, R.39.
On the morning of August 12, two correctional officers came to Mr. Williams’ cell to take him to the shower. What happened next is in dispute. As noted below, in reviewing the district court’s grant of summary judgment, we view the facts in the light most favorable to the non-moving party. Accordingly, the following version is drawn, unless otherwise noted, from Mr. Williams’ description of the events in his deposition. R.61 at 6-8. We acknowledge that the defendants dispute several of Mr. Williams’ allegations.
Mr. Williams was standing in his cell, dressed in pants and a shirt, when the officers arrived and told him they were to escort him to the shower. The officers asked Mr. Williams, “What are you doing dressed?” The officers told Mr. Williams that he should remove all of his clothes except his underwear. Mr. Williams responded that nobody told him he would be escorted to a shower or that he was supposed to be ready and waiting in his underwear. One officer then said to the other, “He does not want a shower.” The officers then left. As they walked away, Mr. Williams called to them to come back, saying in a defensive manner, “I didn’t tell you I didn’t want a shower. Why did you lie like that?” One officer returned and said, “Well, okay, go ahead and get ready for shower. We will come back and get you.” A few minutes later, both officers returned. One officer said to Mr. Williams, “You think you’re tough, don’t you?” Mr. Williams responded, “I don’t think I am tough.” The officer then said, “I am going to see how tough you are when I let you out.” Mr. Williams responded, “Man, well, man, I fought bigger people than you.” The officer opened the cell and Mr. Williams stepped out. Holding handcuffs in his hands, the officer shoved Mr. Williams against the wall. Mr. Williams grabbed the handcuffs and pulled them away from the officer. The officer pushed Mr. Williams back into his cell and shut the door. Mr. Williams asked the officer to bring his supervisor and said, “I am not giving you these cuffs until he comes.” The officers left and returned with a corrections sergeant, who simply said, “Give me the handcuffs.” Mr. Williams gave the handcuffs to the sergeant, who then walked away with the two officers.
All parties agree that the two officers reported to Nurse Anderson that Mr. Williams had become violent. According to Nurse Anderson, the officers told her that Mr. Williams had attacked one of them. Nurse Anderson returned with the officers to Mr. Williams’ cell and told Mr. Williams, “I am going to give you a shot.” Mr. Williams resisted and told Nurse Anderson, “I can’t take those shots ... I am allergic to Thorazine.” Mr. Williams said this not knowing what type of drug Nurse Anderson intended to give him, but remembering that he had had a severe allergic reaction to forced injections of Thorazine when he was previously in custody. One of the officers told Mr. Williams that if he did not stick his arm out of the cell, “we are coining in there.” While Mr. Williams was leaning against the bars, one of the officers reached through the bars, grabbed Mr. Williams’ hand, and pulled his arm through the bars. Mr. Williams struggled momentarily to free his arm, but when he saw Nurse Anderson ready with the shot, he submitted. In her notes on .the event, Nurse Anderson wrote that she administered the drug “with force.” R.23 Ex. A. Mr. Williams had an allergic reaction to the injection, including tachycardia and loss of control of his neck muscles.
B. District Court Proceedings
On September 20, 1988, Mr. Williams filed suit against Nurse Anderson and Dr. Parwatikar, under 42 U.S.C. § 1983, for alleged violations of his rights under the Eighth and Fourteenth Amendments. The parties consented to trial by a Magistrate Judge. After discovery, both sides moved for summary judgment. On June 16, 1989, and March 30, 1990, the court held hearings on the cross-motions for summary judgment. On May 31, 1990, the court granted the defendants’ motion for summary judgment. R.68, R.69. On June 29, 1990, Mr. Williams filed a timely notice of appeal.
II
ANALYSIS
In the “Request For Relief” section of his pro se complaint, Mr. Williams asked the district court to
[djeclare that the acts and omissions of the defendants violate plaintiffs’ [sic] rights, privileges and immunities secured by the United States Constitution Eighth and Fourteenth Amendments; Award compensatory damages to the plaintiff in the amount of $100,000.00 and punitive damages in the amount of $25,000.00; Order defendants to pay the costs of this suit and reasonable attorney’s fees to plaintiff; Grant such other relief as this court deems just and proper.
R.l at 6. With respect to Mr. Williams’ claim for damages, Nurse Anderson and Dr. Parwatikar raised the affirmative defense of qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). They contend that their actions did not violate any constitutional right that was “clearly established” at the time of the incident. Although the district court ruled in favor of the defendants for different reasons, we find that this “threshold immunity question” is dis-positive of the damages claim and limit our review of this claim to this question. Siegert v. Gilley, — U.S. -, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). We then address the rest of Mr. Williams’ requested relief.
A. Applicable Standards
We review de novo a district court’s grant of summary judgment. Doe v. Allied-Signal, Inc., 925 F.2d 1007, 1008 (7th Cir.1991). Our task is to determine whether the record reveals that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970). “A motion for summary judgment is not an appropriate occasion for weighing the evidence; rather, the inquiry is limited to determining if there is a genuine issue for trial.” Lohom v. Michal, 913 F.2d 327, 331 (7th Cir.1990); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). We “ ‘must view the record and all inference drawn from it in the light most favorable to the party opposing the motion.’ ” Lohorn, 913 F.2d at 331 (quoting Holland v. Jefferson Nat’l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir.1989)).
The doctrine of qualified immunity shields government officials performing discretionary functions from liability for damages when their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Knowledge of a general right is not sufficient to invoke liability; “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). This test “focuses on the state of the law at the time of the alleged violation.” Zook v. Brown, 748 F.2d 1161, 1164 (7th Cir.1984).
B. Request for Damages
The incident that gave rise to this lawsuit occurred in August 1985. Thus, in assessing the qualified immunity claims, our concern is whether statutes or caselaw existed in August 1985 to establish clearly that a state prisoner held in a psychiatric unit had a right under the Eighth or Fourteenth Amendment against forced administration of an antipsychotic drug without procedural review of the prescription or personal observation by a medical professional of the immediate need for the drug.
We begin with the relevant Supreme Court caselaw in 1985. In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Supreme Court set forth the standard for analyzing prison medical treatment under the Eighth Amendment’s proscription of cruel and unusual punishment. The Court held that “deliberate indifference to a prisoner’s serious illness or injury,” as well as “the unnecessary and wanton infliction of pain” violates the Eighth Amendment. Id. at 104-05, 97 S.Ct. at 291. The Court also made clear that medical malpractice, such as a physician’s failure to order a diagnostic test, does not offend the Eighth Amendment. “[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.” Id. at 106, 97 S.Ct. at 292.
With respect to a prisoner’s rights to due process, in Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), the Court addressed the issue of whether a prisoner had a right to refuse transfer to a state mental hospital and to have procedural protections of that right. The Court concluded that a prisoner does indeed have such rights under the Due Process Clause.
A criminal conviction and sentence of imprisonment extinguish an individual’s right to freedom from confinement for the term of his sentence, but they do not authorize the State to classify him as mentally ill and to subject him to involuntary psychiatric treatment without affording him additional due process protections.
Id. at 493-94, 100 S.Ct. at 1264. The Court further held that the required due process protections include notice, a hearing, the opportunity to present and cross-examine witnesses, and to have an independent deci-sionmaker. Id. at 494-96, 100 S.Ct. at 1264-65. But in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), the Court held that, although a developmentally disabled person who is committed involuntarily to a state hospital retains constitutionally protected liberty interests, the procedural protections of those interests are satisfied by the professional judgment of a mental health professional. Specifically, the Court held that a mental health professional’s decision to place such a person under restraint is “presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Id. at 323, 102 S.Ct. at 2462. Neither Vitek nor Youngberg addressed the precise issue of whether an inmate has a right to refuse antipsychotic drugs. By analogy, Vitek seemed to call for extensive procedural preconditions, but Youngberg appeared to grant presumptive validity to professional judgment.
The decisions of the United States Courts of Appeals also failed to establish clearly that the forcible administration of antipsy-chotic drugs to a mentally ill prisoner violated either the Eighth or Fourteenth Amendment. In Bee v. Greaves, 744 F.2d 1387 (10th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985), the Tenth Circuit held that a pretrial detainee has a constitutionally-derived liberty interest in avoiding unwanted medication with antipsychotic drugs, but that this interest must be balanced against state interests in maintaining security and “prevent[ing] a violent and dangerous mentally ill prisoner from injuring himself and others.” Id. at 1394. The Tenth Circuit further held that, while forcible medication with antipsychotic drugs may be required in an emergency, the decision that an emergency exists “must be the product of professional judgment by appropriate medical authorities, applying acceptable medical standards.” Id. at 1395-96. Similarly, in Rennie v. Klein, 720 F.2d 266, 269 (3d Cir.1983) (en banc) a three-judge plurality of the Third Circuit wrote that “antipsy-chotic drugs may be constitutionally administered to an involuntarily committed mentally ill patient whenever, in the exercise of professional judgment, such an action is deemed necessary to protect the patient from endangering himself or others.” See also id. at 274 (Seitz, C.J., concurring). And in Lojuk v. Quandt, 706 F.2d 1456 (7th Cir.1983), this court addressed the due process requirements of administering elec-tro-convulsive therapy to patients who were voluntarily committed to a Veterans Administration psychiatric facility but had become incompetent to make treatment decisions. While this court declined to define precisely the scope of the liberty interest or the minimum procedures required by the Fifth Amendment’s Due Process Clause, the court did hold that, “under even the most lenient reading of the Due Process Clause,” the decision to administer electro-convulsive therapy must comport with accepted professional practice. Id. at 1467-68.
While these decisions of the United States Courts of Appeals share a least common denominator — that the decision to medicate an inmate or psychiatric patient against his will must meet professional standards of judgment — the decisions of the United States District Courts did not even, unanimously agree upon this procedural minimum. In Stensvad v. Reivitz, 601 F.Supp. 128 (W.D.Wis.1985), a district court upheld a Wisconsin statute under which involuntarily committed mental patients had no right to refuse medication and treatment. The plaintiff, who had been committed to a Wisconsin state mental health facility after a jury verdict of not guilty of first degree murder by reason of mental disease or defect, challenged the state law under the Due Process Clause of the Fourteenth Amendment. The district court ruled that, because the statute required the drug to be prescribed by a physician, and because that decision was appeal-able via a grievance procedure which protected an inmate’s right to treatment that “is appropriate for his or her condition,” the statutory scheme taken as a whole was constitutional under the Supreme Court’s Youngberg guidance. Stensvad, 601 F.Supp. at 131.
In Gilliam v. Martin, 589 F.Supp. 680 (W.D. Okla.1984), a district court upheld the forced administration of antipsychotic medication to an inmate who had a history of violent, abusive, and destructive behavior whenever he was not under the effects of the medication. The court ruled that any due process rights the inmate had to be free from forcible administration of the drug were adequately protected by the use of trial periods of withdrawal of the medication, which had resulted in repeated regression to a dangerous psychotic condition, and by the use of various tests and examinations over a period of more than nine years. Id. at 682.
In Davis v. Hubbard, 506 F.Supp. 915 (N.D.Ohio 1980), a district court struck down a state mental hospital’s practice of freely administering antipsychotic drugs to patients against their will. At the hospital, antipsychotic drugs were prescribed by both licensed and unlicensed physicians for patients they had never seen. The prescriptions were at times to be given PRN, and attendants — without review by the prescribing physician — were allowed to request that a patient be medicated pursuant to such a prescription. Id. at 926-27. The court ruled that, in non-emergency situations, the hospital must provide the patient “some kind of hearing before compelling the patient to take psychotropic drugs.” Id. at 938-39. This hearing must be held before an impartial decisionmaker and the patient must be allowed to present his views. Id. The court ruled, however, that when the hospital has reasonable cause to believe that a patient is “presently violent or self-destructive, and in such condition presents a present danger to himself, other patients or the institution’s staff,” the hospital could forcibly administer antipsychotic drugs. Id. at 935 (emphasis in original).
In Sconiers v. Jarvis, 458 F.Supp. 37 (D.Kan.1978), a district court upheld against a First Amendment challenge to the forced administration of antipsychotic drugs to an inmate who had an extensive history of hostile and destructive behavior and had been diagnosed with paranoid schizophrenia. Noting that prison officials have the responsibility to provide proper care for ill inmates as well as the responsibility to protect neighboring inmates, the court concluded that “the forced administration by prison physicians of tranquilizing drugs to an inmate with a medical history such as plaintiff’s is not a violation of federal rights.” Id. at 40.
In Nelson v. Heyne, 355 F.Supp. 451 (N.D.Ind.1972), aff'd, 491 F.2d 352 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974), a district court struck down a standing order by a physician at a reform school which allowed the custodial staff of the school to ask the staff nurse to administer forcibly antipsy-chotic drugs to residents who became overexcited. The standing order covered all the residents; the physician had not examined or diagnosed any individual resident nor prescribed the drug for a limited number of individuals. The court ruled that because this practice was not part of an on-going psychotherapeutic program, it violated the residents’ Eighth and Fourteenth Amendment rights. Id. at 455.
In Peek v. Ciccone, 288 F.Supp. 329 (W.D.Mo.1968), a district court upheld the one-time forced administration of an anti-psychotic drug to an inmate who had a medical history of chronic schizophrenia. The medication was prescribed by a physician for regular administration, and the inmate had regularly taken the drug voluntarily. The physician testified that the drug treatment had improved the inmate’s condition. The court concluded that a onetime forced administration of the drug was not punishment or harm and did not violate the inmate’s constitutional rights.
These district court opinions fail to delineate clearly the right of an inmate or psychiatric patient to refuse antipsychotic drugs, beyond the right to have a physician’s examination and to have the medication prescribed as treatment rather than given as punishment. In sum, at the time the defendants acted, it was not clearly established that their actions violated the Due Process Clause of the Fourteenth Amendment. Nor was it established that their actions amounted to the sort of “deliberate indifference” or “unnecessary and wanton infliction of pain” independently proscribed by the Eighth Amendment. Thus, we hold that Nurse Anderson and Dr. Parwatikar are shielded from Mr. Williams’ claim for damages by the doctrine of qualified immunity; neither Nurse Anderson nor Dr. Parwatikar violated any constitutional right that was clearly established at the time of the incident.
Recently, the Supreme Court clarified the rights of inmates to refuse antipsy-chotic drugs. In Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990), the Court made clear that an inmate “possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment,” id. at 221-22, 110 S.Ct. at 1036, and that certain “procedural protections are necessary to ensure that the decision to medicate an inmate against his will is neither arbitrary nor erroneous.” Id. at 228, 110 S.Ct. at 1040. In deciding whether the defendants are entitled to qualified immunity, we need not determine whether the procedures which Nurse Anderson and Dr. Parwatikar undertook prior to administering Haldol to Mr. Williams would violate rights that are clearly established after Washington.
C. Request for Injunctive Relief
Reading the plaintiff’s complaint charitably, as we must under the circumstances, we proceed on the assumption that Mr. Williams also requested injunctive relief. At oral argument, the parties notified the court that circumstances have changed significantly since the termination of the proceedings in the district court. Apparently, Mr. Williams is no longer in the psychiatric center at Menard, and Dr. Parwatikar’s prescription is no longer in force. It is not clear, however, that these changes are sufficient to moot the request for injunctive relief. In Washington, the Supreme Court held that an inmate’s claim with respect to the administration of anti-psychotic drugs did not become moot when he remained in the prison system and had a medical history that produced a strong likelihood of his return to the prison psychiatric center for further treatment. 494 U.S. at 218-19, 110 S.Ct. at 1035. The record in this case is not as well-developed as that before the Justices in Washington, and we cannot determine definitively whether the administration of antipsychotic drugs to this inmate by these defendants is capable of repetition yet evading review. See Honig v. Doe, 484 U.S. 305, 317-23, 108 S.Ct. 592, 601-04, 98 L.Ed.2d 686 (1988); Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982) (per curiam). As the Supreme Court pointed out in Washington, this assessment is fact-intensive. 494 U.S. at 218-19, 110 S.Ct. at 1035. Therefore, it is best left to the district court.
Conclusion
For the foregoing reasons, the district court’s judgment is affirmed in part and vacated and remanded in part. The parties shall bear their own costs in this court.
Affirmed in part, Vacated and Remanded in part.
. "Antipsychotic drugs, sometimes called 'neuro-leptics’ or ‘psychotropic drugs,’ are medications commonly used in treating mental disorders such as schizophrenia.” Washington v. Harper, 494 U.S. 210, 214, 110 S.Ct. 1028, 1032, 108 L.Ed.2d 178 (1990).
. R.23 Ex.A. “PRN" is an abbreviation for pro re nata, a Latin phrase which means "as needed.”
. Nurse Anderson and Dr. Parwatikar raise an alternative defense of Eleventh Amendment immunity. Because Mr. Williams sued Nurse Anderson and Dr. Parwatikar personally and is seeking damages from them personally, Mr. Williams' suit is against Nurse Anderson and Dr. Parwatikar in their individual capacities rather than in their official capacities and Eleventh Amendment immunity is therefore unavailable. Kentucky v. Graham, 473 U.S. 159, 165-67, 105 S.Ct. 3099, 3105-06, 87 L.Ed.2d 114 (1985); Walker v. Rowe, 791 F.2d 507, 508 (7th Cir.), cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 597 (1986).
. Federal courts have a duty to interpret charitably pleadings filed by pro se litigants, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972); Caldwell v. Miller, 790 F.2d 589, 595 (7th Cir.1986), especially when dealing with "the workproduct of an individual with a history of mental health problems, Spencer v. Lee, 864 F.2d 1376, 1385 (7th Cir.1989) (en banc) (Ripple, J., and Flaum, J., concurring in part and dissenting in part), cert. denied, 494 U.S. 1016, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990).
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
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.
H. S. EQUITIES, INC., Plaintiff-Appellant Cross-Appellee, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant and Third Party Plaintiff-Appellee-Cross-Appellant, v. Joseph DECKER, Third-Party Defendant-Appellee.
Nos. 836,965, Dockets 80-7814, 80-7892.
United States Court of Appeals, Second Circuit.
Argued June 3, 1981.
Decided Oct. 1, 1981.
Wien, Lane & Malkan, New York City (Robert G. Desmond, and Wayne R. Lehrhaupt, New York City, of counsel), for plaintiff-appellant-cross-appellee.
Bigham, Englar, Jones & Houston, New York City (Thomas R. Pattison, and Peter Broeman, New York City, of counsel), for appellee-cross-appellant and third party plaintiff.
Alfred C. Purello, Albany, N. Y., for third party defendant-appellee.
Before TIMBERS and WATERMAN, Circuit Judges, and LASKER, District Judge.
Morris E. Lasker, United States District Judge for the Southern District of New York, sitting by designation.
LASKER, District Judge.
HS Equities, Inc. (HS) appeals from a judgment entered after a bench trial before the United States District Court for the Southern District of New York (Metzner, District Judge) in which it was awarded $64,512.90 and interest on its claim for $130,000. asserted against Hartford Accident and Indemnity Company (Hartford), and from a post-trial order denying its motion to amend the findings of fact by increasing the award. In addition, HS appeals from an order granting Hartford summary judgment on HS’ separate claim for $49,730.6!, for attorneys’ fees and costs.
Hartford cross appeals from the judgment of the district court awarding HS $64,512.90 and interest and from the dismissal of Hartford’s third-party complaint against Joseph Decker (Decker), as well as from the order denying its claim that HS’ action was not commenced within the contractual period of limitation.
I.
HS brought this action to recover, under a blanket brokers bond (the Bond) issued by Hartford, the sum of $130,000. paid by HS in settlement of actions brought against HS and Decker, its registered representative, and for attorneys’ fees. The Bond, which Hartford issued to HS in 1967, covered “[a]ny loss through any dishonest, fraudulent or criminal act of any of the Employees . . . . ” In addition, it separately provided for indemnification against court costs and reasonable attorneys’ fees incurred and paid by Hartford in defending against a claim which, if established, would constitute a collectible loss under the Bond. In consideration for this provision, HS agreed that it would “promptly give notice to [Hartford] of the institution of any such suit or legal proceeding” and that Hartford could undertake defense of the suit if it elected to do so. The Bond required that a suit under the Bond must be “begun within twenty-four months after [HS] shall learn of such loss. ...”
The earlier action for which HS seeks indemnity was instituted in the fall of 1970 by two customers of HS, the Draicchios, on account of alleged violations of the anti-fraud provisions of the Securities Act of 1933 and the Securities Exchange Act of 1934 and breaches of common-law fiduciary duties. The Draicchios charged that their accounts had been churned, that unauthorized trading had taken place, that unsuitable securities had been purchased for their accounts, that HS and Decker had engaged in self-dealing, and that a series of margin violations had occurred. They sought over $225,000. in actual damages and $350,000. in exemplary damages and attorneys’ fees.
On August 11, 1971, HS gave notice to Hartford of the pendency of the Draicchio suits and forwarded copies of the Draicchios’ complaints to Hartford. Hartford declined to undertake the defense of the actions. On June 25, 1975, HS notified Hartford that the cases had been consolidated for trial on July 25, 1975, and that HS had refused a settlement demand of $155,000. by the Draicchios. At that time, HS invited Hartford to participate in settlement discussions and inquired if Hartford objected to HS settling the suits. Hartford responded that since it had elected not to defend the suits, it would neither approve nor disapprove the settlement and that a settlement would not prejudice HS’ rights to proceed under the Bond but that this statement did not constitute a waiver by Hartford of any defenses it had under the Bond.
The Draicchio trial began on July 25, 1975. After a week of trial principally devoted to Mr. Draicchio’s direct testimony, the trial was adjourned for the weekend and the court suggested that counsel further consider settlement. The following Monday morning settlement was reached. HS agreed to pay the Draicchios $130,000. on account of all claims against HS and Decker.
Decker, who was represented by the same counsel as HS, did not contribute to the settlement. HS had secured counsel to represent Decker and itself, paid all legal fees, and paid Decker’s expenses in connection with the suit. Decker voiced satisfaction with the settlement and was told by counsel that he could return home. Decker was not informed that as a result of the settlement he might be sued by Hartford if Hartford was called to pay under the Bond, and HS did not execute a release in favor of Decker. Thereafter, HS paid the settlement and stipulations of dismissal were executed on August 5, 1975.
On August 5, 1975, HS advised Hartford of the settlement and demanded reimbursement for the $130,000. as well as $42,530.61 in attorneys fees and $2,200. in expert witness fees. HS returned a completed proof of loss form to Hartford on September 4, 1975, for these amounts. After discussions between HS and Hartford, Hartford denied the claim in writing on December 11, 1975 on the ground that there was no evidence of Decker’s dishonesty.
In July, 1977, HS filed its complaint in the present action to enforce Hartford’s asserted liability under the Bond. Hartford answered and filed a third-party complaint against Decker alleging that it was entitled to judgment against Decker for any amount for which it might be found to be liable to HS. All parties then moved for summary judgment. In an opinion dated October 17, 1978, the district court denied the motions except for that portion of Hartford’s motion for summary judgment dismissing HS’ claim for reimbursement of attorneys’ fees and litigation expenses. The district court held that HS’ nine month delay in informing Hartford of the institution of the Draicchio suits did not comply with the prompt notice requirement of the attorneys’ fees provision of the Bond and that Hartford had not waived the notice provisions by denying liability under the Bond for the actions.
A bench trial was held in May, 1980, and the district court filed its findings of fact and conclusions of law on June 23, 1980. It found that the settlement of the Draicchio actions had been in good faith and that Hartford had been accorded a reasonable opportunity to defend the actions and had declined to do so. Relying on Feuer v. Menkes Feuer, Inc., 8 A.D.2d 294, 187 N.Y.S.2d 116 (1959) and other New York decisions, it held that the settlement conclusively established Hartford’s liability under the Bond for the portion of the settlement attributable to the claims that Decker had committed fraudulent or dishonest acts. The district court determined that $65,000. of the settlement was attributable solely to HS’ liability for margin violations and that the remainder was attributable to the allegations of Decker’s misconduct.
In addition, the district court dismissed Hartford’s claim against Decker. It held that Decker would have a defense against a claim by HS to recover any part of the loss allegedly due to his misconduct because HS was responsible for the conflict of interest in the representation of Decker in the Draicchio actions and had failed to protect his interests by providing him a release from HS. Since Hartford’s rights against Decker could be no greater than HS’ rights against Decker, the district court concluded that Hartford could not maintain its claims against Decker. It held further that Hartford’s inability to proceed against Decker did not constitute an impairment by HS of Hartford’s right of subrogation since Hartford’s refusal to defend the Draicchio actions had the same effect as a denial of liability under the Bond, which in turn constituted a waiver by Hartford of the defense of impairment of subrogation rights.
HS appeals from the district court’s decision on the grounds that it was entitled to the full $130,000. settlement sum and that it was improper to grant Hartford summary judgment of HS’ claim for indemnification of attorneys’ fees. Hartford argues that liability under the Bond was never established and that its claim against Decker should not have been dismissed.
II.
We consider first the threshold issue whether Hartford was liable to HS under the Bond. In an action involving the same bond as at issue here, HS Equities, Inc. v. Hartford Accident and Indemnification Company, 609 F.2d 669 (2d Cir. 1979) (“Michael”), we read the New York law on the subject to be that when an indemnitor has been accorded a reasonable opportunity to defend a third-party action against the indemnitee and declines, the good-faith settlement of the third-party claim by the indemnitee is presumptive evidence of the facts alleged in the third-party complaint. Thereafter, the indemnitor has the burden successfully to contest this presumptive evidence in the action for indemnification. 609 F.2d at 674-75. We specifically rejected the proposition that such a settlement constituted conclusive evidence of the facts upon which it was based. 609 F.2d at 674 n.8. Since, in Michael, Hartford had never advanced Michael’s innocence as a defense to its liability to HS under the Bond, we held that it had failed to overcome the presumptive effect of the good-faith settlement of the third-party suits and that it was therefore unnecessary for the trial court to determine whether the allegations of misconduct on the part of Michael were true.
Hartford contends that in this case the district court erred by finding Hartford liable on the Bond without finding as a matter of fact that the settlement was made because of Decker’s “dishonest, fraudulent or criminal acts” within the meaning of the Bond. Hartford argues that, while it introduced evidence at trial that Decker was innocent of the misconduct alleged in the Draicchio complaints, HS introduced no evidence of Decker’s misconduct and even declared on the record that it was not taking the position that Decker had in fact acted fraudulently or dishonestly. It follows, according to Hartford, that it was never established that there was a loss encompassed by the terms of the Bond.
Hartford next argues that the district court should not have applied the presumption discussed in Michael because here, unlike Michael, there had been no finding that Hartford had denied liability under the Bond. Hartford contends that, since it had a contractual right to decline to defend third-party suits, its decision not to defend should not result in a presumption against it. Hartford further contends that even if the Michael presumption does apply when the indemnitor has not denied liability, the district court failed to adhere to Michael because it treated the Draicchio settlement as conclusive rather than rebuttable evidence of Decker’s misconduct. In any event, Hartford maintains that we misread the relevant New York law in Michael and that no presumption should apply here because the bond in question is not a broad indemnity bond but comes into effect only when particular acts or misconduct in fact produce a loss to the insured.
HS responds that the issue whether Hartford denied liability under the Bond is irrelevant to the determination of the effect of the settlement of the Draicchio actions under the relevant New York law. Moreover, HS asserts that the opinion in Michael misread the New York law on the effect of a good-faith settlement on a later action for indemnification. According to HS, it is firmly established by New York decisions that, if the indemnitor is given notice of the third party suit and a reasonable opportunity to defend and declines to do so, any reasonable, good-faith settlement entered into by the indemnitor is conclusive evidence of the facts alleged in the third-party complaint in the later action for indemnification. It follows, HS says, that it was not required to establish in the district court that Decker had acted fraudulently or dishonestly, but only that Hartford declined to defend and that the settlement was entered into in good faith. Since the district court found these facts, HS contends that it properly accorded the settlement of the Draicchio actions conclusive effect against Hartford.
The finding that Hartford is liable to HS under the Bond for the portion of the settlement of the Draicchio actions-attributable to allegations of Decker’s misconduct is reversed. We believe that the district court failed to apply our holding in Michael and treated the good-faith settlement of the Draicchio actions as conclusive evidence of Decker’s wrongdoing in this indemnification action. Under Michael, the settlement of the Draicchio suit constituted only presumptive evidence which Hartford was entitled to contest. Here, unlike Michael, Hartford introduced substantial evidence that Decker was innocent of any wrongdoing. HS took the position that Decker’s innocence or guilt was, in light of Hartford’s decision not to defend, irrelevant to Hartford’s liability under the Bond. The trial court incorrectly agreed with HS and therefore failed to determine whether Hartford had overcome the presumption created by the settlement, whether HS was obliged to submit proof of Decker’s misconduct, and whether Decker in fact was guilty of the allegations in the Draicchios’ complaints. Accordingly, the case must be remanded to the district court to hear the evidence and make the determinations which it omitted.
We do not agree with Hartford, however, that the presumption discussed in Michael depends upon a finding that Hartford denied liability under the bond prior to the time of settlement. While in Michael Hartford had actually denied liability, and we noted that fact in our discussion of the effect of the prior settlement in the indemnification action, our analysis of the New York law did not conclude that a denial of liability is a precondition to the application of the presumption. See Michael, supra, at 674 n.8.
III.
HS contends that the district court erred in granting Hartford summary judgment on HS’ claim for reimbursement of attorneys’ fees and litigation expenses. HS argues first that Hartford’s assertion that third-party customer suits did not come within the coverage of the Bond relieved HS from the obligation under the attorneys’ fees provision of the Bond promptly to notify Hartford of any such suit. In its opposition to Hartford’s summary judgment motion, HS had submitted the affidavit of Robert J. Poulson, HS’ present general counsel who in 1969 was employed on its legal staff, which HS asserts established that Hartford had taken the position that customer suits were not within the Bond’s coverage. HS argues that the trial court misconstrued the affidavit as merely establishing HS’ denial of liability in a particular case. HS emphasizes that the same denial of liability was referred to in Michael as constituting a denial of liability for customer suits in general. Moreover, HS argues that, as a result of the findings of fact in Michael, Hartford is collaterally estopped from asserting that it did not deny liability for customer fraud suits in early 1970. Finally, HS contends that even if the district court were correct that Hartford had not denied liability under the Bond, it still erred in granting summary judgment on the attorneys’ fees claim because the question whether HS promptly informed Hartford of the Draicchio actions constituted a genuine issue of material fact precluding summary judgment.
Hartford responds that the district court properly determined that a delay of nine months was unreasonable as a matter of law and therefore violated the contractual requirement that HS notify Hartford promptly of suits against it. Hartford emphasizes that HS submitted no evidence in opposition to the motion for summary judgment which established an excuse for the delay in notice. Moreover, Hartford stresses that the issue of Hartford’s alleged denial of liability was considered at trial and that the district court found that there was no denial of liability since HS had in fact notified Hartford of the suits, albeit belatedly. According to Hartford, the district court found HS’ belated notice to be inconsistent with HS’ position that HS believed that Hartford had previously denied liability. Hartford also argues that the denial of liability found in Michael was limited to churning claims and that HS had been informed in 1970 that Hartford would consider its position with respect to the Bond’s coverage as each particular customer suit was brought to its attention.
The order granting Hartford summary judgment on HS’ claims for attorneys’ fees and litigation expenses is reversed. It is established that a repudiation of liability by an insurer on the ground that the loss is not covered by the policy operates as a waiver of the notice requirements contained in the policy. See, e. g., Rock Transport Properties, Corp. v. Hartford Fire Insurance Company, 433 F.2d 152, 154 (2d Cir. 1970); Beckley v. Otesco County Farmers Cooperative Fire Insurance Company, 3 A.D.2d 190, 195, 159 N.Y.S.2d 270 (3d Dept. 1957); Shapiro v. Employers’ Liability As surance Corp., 139 Misc. 454, 248 N.Y.S. 587 (Sup.Ct.Bronx Co. 1931). In Michael, we upheld the district court’s finding that Hartford’s expression of its general position that third-party customer suits were not encompassed within the terms of the fidelity bond, along with varied justifications for that position, was the equivalent of a denial of liability in the third-party suit at issue. Michael, supra, 609 F.2d at 673. In the present case, HS had submitted an affidavit of Robert J. Poulson which stated that in 1969 Hartford had informed HS of its general position that securities fraud claims arising out of customer suits were not covered by the Bond.
We agree with HS that this affidavit can only be construed to relate to a general denial of liability by Hartford applicable to all customer suits. Accordingly, the Poulson affidavit raised a genuine issue of material fact whether Hartford had actually disclaimed liability under the Bond for all customer suits and whether it had thereby, under Michael, waived its contractual notice rights.
Moreover, we agree with HS that Hartford is collaterally estopped from contesting any facts which were decided or stipulated in Michael. However, the scope and duration of the denial of liability found in Michael is not clear from the record before us. Accordingly, on remand the district court should determine if the general denial of liability discussed in Michael encompassed the claims pressed by the Draicchios and, if so, whether Hartford had changed its position before the Draicchio actions were instituted.
IV.
Hartford contends that the district court erred in dismissing its third-party complaint against Decker. We disagree. The district court found that the joint representation of HS and Decker at the Draicchio suits resulted in counsel’s failure properly to protect Decker’s interests by securing a release from HS in his favor. The evidence supports the district court’s conclusion that, had the circumstances been explained to Decker, he would not have consented to the settlement without securing such a release. Since Decker’s consent to the settlement depended upon HS’ failure to take his interests into account, Decker would have a defense against any action by HS to recover the portion of the settlement attributable to his alleged misconduct. Hartford, standing in the shoes of the subrogor, HS, is subject to the same defense. Great American Insurance Company v. United States, 575 F.2d 1031, 1034 (2d Cir. 1978).
Hartford next argues that if the third-party complaint was properly dismissed against Decker, then HS’ entire complaint against Hartford should have been dismissed on the ground that HS had impaired Hartford’s subrogation rights against Decker. We need not reach this issue at this time. We have remanded the case for a determination whether Hartford had denied liability under the Bond for the claims at issue here. If it is found that Hartford had indeed denied liability, the issue whether HS had impaired Hartford’s subrogation rights will be rendered moot. If it is determined that Hartford did not deny liability, the issue whether HS had impaired Hartford’s subrogation rights by its actions with respect to Decker or whether Hartford’s actions constituted a waiver of its subrogation rights can be determined on a record properly directed to those questions.
V.
The parties’ remaining contentions are without merit. The district court’s finding that $65,000. of the settlement amount was attributable to margin violations for which HS would be liable is supported by ample evidence in the record and is not clearly erroneous. The district court’s finding that the action was begun within the contractual twenty-four month period is consistent with the well-established principle that a contract must be construed in the light of the applicable law at the time the contract was executed, see Battaglia v. General Motors Corp., 169 F.2d 254, 258 (2d Cir. 1948) and that any ambiguity in the Bond must be resolved in favor of the insured. E. g., Filor, Bullard & Smyth v. Insurance Company of North America, 605 F.2d 598 (2d Cir. 1978); State Farm Mutual Auto Insurance Company v. Westlake, 35 N.Y.2d 587, 591, 364 N.Y.S.2d 482, 324, N.E.2d 137 (Ct.App.1974).
Reversed in part, affirmed in part and remanded for proceedings consistent with this opinion.
. HS Equities, Inc. v. Hartford Accident and Indemnity Company, 493 F.Supp. 451 (S.D.N.Y.1980).
. HS Equities is the surviving entity of Hayden, Stone Inc. We refer to both entities as “HS”.
. The relevant provisions of the Bond are as follows:
“The losses covered by this Bond are as follows:
FIDELITY
(A) Any loss through any dishonest, fraudulent or criminal act of any of the Employees, committed anywhere and whether committed alone or in collusion with others, including loss of Property through any such act of any of the Employees.
COURT COSTS AND ATTORNEYS FEES
[Hartford] will indemnify the Insured against court costs and reasonable attorneys’ fees incurred and paid by the Insured in defending any suit or legal proceeding brought against the Insured to enforce the Insured’s liability or alleged liability on account of any loss, claim or damage which, if established against the Insured, would constitute a valid and collectible loss sustained by the Insured under the terms of this bond. Such indemnity shall be in addition to the amount of this bond. In consideration of such indemnity, the Insured shall promptly give notice to [Hartford] of the institution of any such suit or legal proceeding; at request of [Hartford] shall furnish it with copies of all pleadings and other papers therein; and at [Hartford’s] election shall permit [Hartford] to conduct the defense of such suit or legal proceeding, in the Insured’s name, through attorneys of [Hartford’s] own selection.
LOSS — NOTICE—PROOF-LEGAL PROCEEDINGS
Section 3. The Insured shall give to the Underwriter written notice of any loss under this bond as soon as possible after the Insured shall learn of such loss, and within ninety days after learning of such loss shall file with the Underwriter an itemized proof of claim duly sworn to. The Underwriter shall have thirty days after notice and proof of loss within which to investigate the claim, but where the loss is clear and undisputed, settlement shall be made within forty-eight hours; and this shall apply notwithstanding the loss is made up wholly or in part of securities of which duplicates may be obtained. No action or proceeding shall be brought under this bond in regard to any loss unless begun within twenty-four months after the Insured shall learn of such loss, except that any action or proceeding to recover hereunder on account of any judgment against the Insured in any suit mentioned in the paragraph entitled Court Costs and Attorneys’ Fees, or to recover attorney’s fees paid in any such suit, shall be begun within twenty-four months from the date upon which the judgment in such suit shall become final, or in case such limitation be void under the law of the place governing the construction hereof, then within the shortest period of limitation permitted by such law.”
. After trial, HS moved for an order amending the findings of fact to provide that only $487.10 should be deducted from the $130,000. settlement it paid on the ground that the margin violations alleged by the Draicchios were attributable to Decker’s mismanagement of the account rather than to HS. Hartford moved to increase the amount of the settlement attributable to HS. In a decision dated September 3, 1980, the district court reiterated its finding that $65,000. of the settlement was attributable to margin violations for which HS would have been liable and therefore should be deducted from the amount of the settlement for which Hartford was liable under the Bond. The district court also held that an additional $487.10, representing Decker’s remaining interest in a profit sharing plan, should be deducted from HS’ recovery and that interest should run on the amount awarded to HS.
. The arguments of both HS and Hartford that Michael misconstrued the applicable New York law are not properly presented to a panel of this court. See Ingram v. Kumar, 585 F.2d 566 (2d Cir. 1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979); Lee v. Frozen Food Express, Inc., 592 F.2d 271 (5th Cir. 1979).
. The trial court’s decision that Hartford’s earlier denial of liability could not be held to apply to customer suits which had not yet been instituted at the time of Hartford’s statements was rendered before our opinion in Michael and was therefore without the benefit of our holding that Hartford’s general denial of liability for particular claims, coupled with justification for its position, was the legal equivalent of a denial of liability for a particular suit within the scope of the general denial. It is unclear whether the district court’s observation at trial that HS’ late notice was inconsistent with HS’ assertion that it believed Hartford had already denied liability for such suits was intended to constitute a finding that Hartford had not in fact denied liability. If it were so intended, we disagree. HS’ belated notice cannot legally or factually serve to estop it from asserting that it had no duty to notify Hartford in the first place because Hartford had waived the prompt notice right by disclaiming liability. HS’ motivations in giving notice at a later time are irrelevant to the factual issue whether Hartford had waived notice by denying liability.
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_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America v. Elroy F. CARTER, Appellant.
No. 22912.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 16, 1970.
Decided June 5, 1970.
Mr. John A. Nevius, Washington, D.C. (appointed by this court), with whom Mr. William R. Stratton, Washington, D.C., was on the brief, for appellant.
Mr. James L. Lyons, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry, and Richard A. Hibey, Asst. U. S. Attys., were on the brief, for appellee. Mr. Roger E. Zuckerman, Asst. U. S. Atty., also entered an appearance for appellee.
Before BAZELON, Chief Judge, TAMM, Circuit Judge, and JAMESON, Senior District Judge.
Sitting by designation pursuant to the provisions of Title 28, U.S.Code, Section 294(d).
PER CURIAM:
Found guilty after having waived his right to a jury trial on charges of both robbery (22 D.C.Code § 2901 (Supp. III 1970)) and assault with a dangerous weapon (22 D.C.Code § 502 (1967)), appellant contends before us that the trial court should have granted his motion for a judgment of acquittal upon the ground of mental illness. Without in any way challenging the allegations regarding his participation in the crimes charged, appellant, admittedly a narcotic addict, argues that the evidence of his narcotic addiction, when weighed with the testimony of two psychiatrists and a psychologist called by the appellant, should have compelled the trial judge to grant the motion for judgment of acquittal by reason of insanity.
I.
Prior to trial appellant was committed to St. Elizabeths Hospital, and in due course he was certified competent to stand trial. Three members of the staff at St. Elizabeths who had examined appellant during his confinement there testified at length regarding his mental condition, and he also called as a witness one of the police officers who had observed his condition shortly after his arrest. The trial judge, in ruling upon appellant’s motion for judgment of acquittal, first observed that had there been a jury in the case he would have been required to submit the question of appellant’s mental capacity to that body (Tr. 199) — obviously to determine as a matter of fact whether the evidence established appellant’s capacity beyond a reasonable doubt.
The trial judge thereafter summarized his findings and contusions as to the appellant’s guilt and mental condition. He found:
That the crime [s] charged were committed and that appellant participated in them. (Tr. 200.)
That appellant’s participation was to such an extent that he could be found guilty if there was no causal connection between the crime and the mental disease. (Tr. 200.)
That appellant is suffering from an anxiety reaction and was suffering from an anxiety reaction at the time the crime[s] were committed. (Tr. 199. )
That the anxiety reaction is recognized in psychiatric journals and bulletins as a mental disease. (Tr. 200.)
That the anxiety reaction from which appellant suffered was a “mild” or “moderate” one which permitted the appellant or any other person “in a like situation to exercise control over himself, to restrain himself, and otherwise to function in a normally acceptable way within society.” (Tr. 200. )
That appellant “is and was” a narcotic addict at the time the crime [s] were committed. (Tr. 200.)
That the record was unclear as to whether appellant used drugs to alleviate his anxiety reaction or for some other reason. (Tr. 201.)
That, whatever was the reason for appellant’s narcotic addition, the use of narcotics can under certain circumstances alleviate the anxiety which is the mental disease from which appellant suffered. (Tr. 201.)
That at the time of the perpetration of the crime [s] and although appellant was then suffering from “a mental disease * * * a moderate form of anxiety reaction,” he was nevertheless “a highly intelligent person, he was able to plan, he was able to execute” and he was “capable of refraining from doing the acts which constitute the crime[s].” (Tr. 201-202.)
That at the time appellant committed the crime [s] “he was not suffering any withdrawal symptoms so that there was no compulsive or impulsive situation which caused him to do the acts which constitute the crime [s],” and that “[h]e was able to plan and to execute it, and he was able to refrain [from doing it].” (Tr. 202.)
That the testimony indicated that appellant was at the time of the commission of the offense “high” on drugs, and that “a drug addict who is in such a condition is more capable of controlling his behavior than the average person since the anxiety reaction from which all of us suffer to some degree was completely blanketed by the effect of the drugs.” (Tr. 202.)
From these findings of fact the trial judge concluded that “the crime became one of convenience rather than a crime of necessity.” (Tr. 202.) He rejected, upon the basis of these findings and this conclusion, the theory of appellant that the crime was “tied” to the mental disease.
We have reviewed the entire record of the testimony offered upon the subject of appellant’s mental condition prior to and at the time of the commission of the offenses. With this testimony, as with almost all testimony, it is possible to select excerpts out of context and to argue forcefully in support of any conclusion which the advocate seeks; obviously the trial judge, acting also as the trier of facts in this case, is far more accurate in his appraisal of the credibility of the witnesses and the factual elements establishing truth than we, faced with a cold record, can possibly be. It is, of course, the sole responsibility of the trier of facts to evaluate the testimony of the witnesses and to determine what weight, if any, should be given to the testimony of each witness. This basic principle was forcefully stated by Chief Judge Bazelon in his recent opinion for this court in Adams v. United States, 134 U.S.App.D.C. 137, 142, 413 F.2d 411, 416 (1969) :
The decisions of this jurisdiction have made clear * * * our reluctance to require a directed acquittal for insanity. We have upon occasion refused to find that the Government has not borne its burden even when the evidence of mental illness was un-contradicted. * * * We have emphasized time and again that “in view of the complicated nature of the decision to be made — intertwining moral, legal and medical judgments — ” the insanity defense is peculiarly apt for resolution by the jury. As part of its task, “The jury is free to believe any reasonable ‘estimate’ even though different or contrary views may also be reasonable.”
The Adams decision also makes clear that the governing principles are identical when the court rather than the jury is the trier of fact. (Id.) We cannot say upon the basis of our review of the testimony that the above findings and conclusions are not reasonable or that they are not supported by substantial testimony. We therefore have no authority to ignore or overrule them.
II.
Appellant also challenges his sentence in this case upon the ground that the trial judge should have referred the ease to the Legal Psychiatric Service for presentence evaluation. We noted above that appellant was committed to St. Elizabeths Hospital for mental observation on November 21, 1967 and was reported competent to stand trial on February 20, 1968. These data were before the trial judge at the time of sentencing. During the trial, the presiding judge heard the testimony of several witnesses as to appellant’s mental condition. (Tr. 123-124, 129-154, 160-171, 179-196.) Some six weeks elapsed between the finding of guilt and the imposition of sentence, during which the probation office conducted an investigation and submitted a report which was before the trial judge when sentence was imposed, and which had been “gone over * * * rather carefully.” (Sent. Tr. 4.) In addition, the court considered a sentencing report prepared in appellant’s behalf by the Offender Rehabilitation Project (Sent. Tr. 4), and at the sentencing appellant made no request for further psychiatric examination. Upon the basis of this record we are unable and unwilling to conclude that the trial judge in any way abrogated or abused the discretion residing in him in the imposition of these sentences.
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:
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sc_issue_2
|
03
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
NORMAN et al. v. REED et al.
No. 90-1126.
Argued October 7, 1991
Decided January 14, 1992
Souter, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, Stevens, O’Connor, and Kennedy, JJ., joined. Scalia, J., filed a dissenting opinion, post, p. 296. Thomas, J., took no part in the consideration or decision of the cases.
R. Eugene Pincham argued the cause and filed briefs for petitioners in No. 90-1126.
Kenneth L. Gillis argued the cause for petitioners in No. 90-1435. On the briefs were Jack O’Malley, Burton Stephen Odelson, and Mathias William Delort.
Gregory A. Adamski argued the cause for respondents. With him on the brief for respondents Reed et al. was Karen Conti. Messrs. OMalley, Odelson, and Delort filed a brief for Cook County Officers Electoral Board, respondents in No. 90-1126.
Together with No. 90-1435, Cook County Officers Electoral Board et al. v. Reed et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union of Illinois by William T. Barker, Harvey M. Grossman, John A. Powell, Steven R. Shapiro, and Arthur N. Eisenberg; and for the Committee for Party Renewal by Robert E. Tait.
Justice Souter
delivered the opinion of the Court.
In these consolidated cases, we review a decision of the Supreme Court of Illinois barring petitioners in No. 90-1126 (petitioners) from appearing under the name of the Harold Washington Party on the November 1990 ballot for Cook County offices. We affirm in part, reverse in part, and remand for further proceedings not inconsistent with this opinion.
I
Under Illinois law, citizens organizing a new political party must canvass the electoral area in which they wish to field candidates and persuade voters to sign their nominating petitions. Organizers seeking to field candidates for statewide office must collect the signatures of 25,000 eligible voters, Ill. Rev. Stat., ch. 46, § 10-2 (1989), and, if they wish to run candidates solely for offices within a large “political subdivision” like Cook County, they need 25,000 signatures from the subdivision. Ibid. If, however, the subdivision itself comprises large separate districts from which some of its officers are elected, party organizers seeking to fill such offices must collect 25,000 signatures from each district. Ibid. If the organizers collect enough signatures to place their candidates on the ballot, their organization becomes a “new political party” under Illinois law, and if the party succeeds , in gathering 5% of the vote in the next election, it becomes an “established political party,” freed from the signature requirements of § 10-2. Ibid. A political party that has not engaged in a statewide election, however, can be “established” only in a political subdivision where it has fielded candidates. A party is not established in Cook County, for example, merely because it has fared well in Chicago’s municipal elections.
The Harold Washington Party (HWP or Party), named after the late mayor of Chicago, has been established in the city of Chicago since 1989. Petitioners were the principal organizers of an effort to expand the Party by establishing it in Cook County, and, as candidates for county office, they sought to run under the Party name in the November 1990 elections.
Cook County comprises two electoral districts: the area corresponding to the city of Chicago (city district) and the rest of the county (suburban district). Although some county officials are elected at large by citizens of the entire county, members of the county board of commissioners are elected separately by the citizens of each district to fill county board seats specifically designated for that district. While certain petitioners wished to run for offices filled by election at large, others sought to capture the county board seats representing the city and suburban districts of Cook County.
Because the Party had previously engaged solely in Chicago municipal elections, petitioners were obliged to qualify as a “new party” in Cook County in order to run under the Party name. Accordingly, §10-2 required them to obtain 25,000 nominating signatures in order to designate candidates for the at-large offices. And since petitioners wished to field candidates for the county board seats allocated to the separate districts, they also had to collect 25,000 signatures from each district. Petitioners gathered 44,000 signatures on the city-district component of their petition, but only 7,800 on the suburban component.
After petitioners filed the petition with the county authorities and presented their slate of candidates for both at-large and district-specific seats, respondent Dorothy Reed and several other interested voters (collectively, Reed) filed objections to the slate with the Cook County Officers Electoral Board (Board or Electoral Board). The Board rejected most of Reed’s claims. First, it dismissed her contention that, because there was already an established political party named the “Harold Washington Party” in the city of Chicago, petitioners could not run under that name for the various county offices. Reed relied on the provision of Illinois law that a “new political party,” which petitioners sought to form, “shall not bear the same name as, nor include the name of any established political party . . . .” Ill. Rev. Stat., ch. 46, § 10-5 (1989). The Board, however, suggested that a literal reading of § 10-5 would effectively forbid a political party established in one political subdivision to expand into others, and held that the provision’s true purpose was “to prevent persons who are not affiliated with a party from ‘latching on’ to the popular party name, thereby promoting voter confusion and denigrating party cohesiveness.” The Board found no such dangers here, as Timothy Evans, the only HWP candidate to run in Chicago’s most recent municipal election, had authorized petitioners to use the Party name.
The Board also rejected Reed’s claim that petitioners had failed to gather enough nominating signatures to run as a party for any Cook County office. While the Board found that their failure to gather 25,000 signatures from the suburbs disqualified those who wished to run for the suburban-district commissioner seats, it held that this failure was no reason under §10-2 to disqualify the candidates running under the Party name for city-district and countywide offices. The Board observed that construing the statute to disqualify the entire Cook County slate on this basis would advance no valid state interest and would raise serious constitutional concerns.
Finally, the Board rejected Reed’s claim that, under § 10-2, petitioners’ failure to designate Party candidates for any of the judicial seats designated for either the city district, the suburban district, or the county at large disqualified the entire slate of candidates running under the Party name for all county offices. It decided, among other things, that § 10-2 did not apply because the judgeships at issue were not offices of the same “political subdivision” as nonjudicial offices within Cook County.
On appeal, the Circuit Court of Cook County affirmed the Board’s ruling on the use of the HWP name, but on grounds different from the Board’s. It ruled that while Evans had no statutory power to authorize the use of the Party name, § 10-2 implicitly confined the scope of § 10-5 to cases where two parties seeking to use the same name coexist in the same political subdivision. Since Cook County and the city of Chicago are separate subdivisions, the Circuit Court found no violation of the Election Code.
The Circuit Court nonetheless held that under the plain language of § 10-2, petitioners’ failure to obtain 25,000 signatures for the suburban-district candidates doomed the entire slate, and it alternatively held that petitioners’ failure to list Party candidates for judicial office compelled the same result. For these two independent reasons, the Circuit Court reversed the Board.
On review, the Supreme Court of Illinois held in a brief written order that § 10-5 prohibited petitioners from using the HWP name, and that their failure to gather enough signatures for the candidates in the suburban-district races disqualified the entire slate. It expressly declined “to discuss other points raised on the appeal” and thus chose not to address the effect of petitioners’ failure to list candidates for county judgeships. Three of the court’s seven members dissented on the ground that the majority’s construction of Illinois law irrationally and unconstitutionally suppressed the development of new political parties. The majority justices indicated that they would issue an explanatory opinion, but they never have.
Petitioners then applied for a stay from Justice Stevens, who, in his capacity as Circuit Justice, ordered the mandate of the Illinois Supreme Court to be “stayed or, if necessary, recalled” pending further review by this Court. Order in No. A-309 (Oct. 22, 1990). On October 25, 1990, the full Court granted petitioners’ application for stay pending the filing and disposition of a petition for certiorari, 498 U. S. 931, thereby effectively reviving the Electoral Board’s decision and permitting petitioners to run under the Party name in the November 6, 1990, Cook County election. According to the undisputed representation of the Board, see Brief for Petitioners in No. 90-1435, p. 10, while none of the HWP candidates was elected, several did receive over 5% of the vote, thus fulfilling, if the election stands, a necessary and apparently sufficient condition for the Party’s qualification as an “established political party” within all or part of Cook County at the next election.
In due course, petitioners filed a petition for certiorari in No. 90-1126, and the Board, a respondent in that action, filed its own petition in No. 90-1435. We granted each on May 20, 1991. 500 U. S. 931 (1991).
II
We start with Reed s contention that we should treat the controversy as moot because the election is over. We should not. Even if the issue before us were limited to petitioners’ eligibility to use the Party name on the 1990 ballot, that issue would be worthy of resolution as “ ‘capable of repetition, yet evading review.’” Moore v. Ogilvie, 394 U. S. 814, 816 (1969). There would be every reason to expect the same parties to generate a similar, future controversy subject to identical time constraints if we should fail to resolve the constitutional issues that arose in 1990.
The matter before us carries a potential of even greater significance, however. As we have noted, the 1990 electoral results would entitle the HWP to enter the next election as an established party in all or part of Cook County, freed from the petition requirements of § 10-2, so long as its candidates were entitled to the places on the ballot that our stay order effectively gave them. This underscores the vitality of the questions posed, even though the election that gave them life is now behind us.
III
For more than two decades, this Court has recognized the constitutional right of citizens to create and develop new political parties. The right derives from the First and Fourteenth Amendments and advances the constitutional interest of like-minded voters to gather in pursuit of common political ends, thus enlarging the opportunities of all voters to express their own political preferences. See Anderson v. Celebrezze, 460 U. S. 780, 793-794 (1983); Illinois Bd. of Elections v. Socialist Workers Party, 440 U. S. 173, 184 (1979); Williams v. Rhodes, 393 U. S. 23, 30-31 (1968). To the degree that a State would thwart this interest by limiting the access of new parties to the ballot, we have called for the demonstration of a corresponding interest sufficiently weighty to justify the limitation, see Anderson, supra, at 789, and we have accordingly required any severe restriction to be narrowly drawn to advance a state interest of compelling importance. See Socialist Workers Party, supra, at 184, 186. By such lights we now look to whether §§ 10-2 and 10-5, as construed by the Supreme Court of Illinois, violate petitioners’ right of access to the Cook County ballot.
A
Reversing the judgment of the Circuit Court, the State Supreme Court held, under §10-5, that the Cook County candidates could not claim to represent the HWP because there already was a party by that name in the city of Chicago. The court gave no reasons for so concluding beyond declaring that “petitioner^’] use of the Harold Washington Party name in their petition . . . violate[d] the provisions of section 10-5,” which, the court noted, “prohibits use of the name of an established political party.” Thus, the issue on review is not whether the Chicago HWP and the Cook County HWP are in some sense “separate parties,” but whether and how candidates running for county office may adopt the name of a party established only in the city.
While the Board based its answer to this question on a determination that the city HWP had authorized petitioners to use the Party name, the State Supreme Court’s order seems to exclude the very possibility of authorization, reading the prohibition on the “use of the name of an established political party” so literally as to bar candidates running in one political subdivision from ever using the name of a political party established only in another. As both the dissent below and the opinion of the Board suggest, however, this Draconian construction of the statute would obviously foreclose the development of any political party lacking the resources to run a statewide campaign. Just as obviously, § 10-5, as the State’s highest court apparently construed it, is far broader than necessary to serve the State’s asserted interests.
To prevent misrepresentation and electoral confusion, Illinois may, of course, prohibit candidates running for office in one subdivision from adopting the name of a party established in another if they are not in any way affiliated with the party. The State’s interest is particularly strong where, as here, the party and its self-described candidates coexist in the same geographical area. But Illinois could avoid these ills merely by requiring the candidates to get formal permission to use the name from the established party they seek to represent, a simple expedient for fostering an informed electorate without suppressing the growth of small parties. Thus, the State Supreme Court’s inhospitable reading of § 10-5 sweeps broader than necessary to advance electoral order and accordingly violates the First Amendment right of political association. See Anderson, supra, at 793-794; Williams, supra, at 30-34.
For her part, when Reed argues that the county Party, led by R. Eugene Pincham, is “different from” the Party established in the city of Chicago under the leadership of Timothy Evans, she may indeed be suggesting that the city Party failed to authorize the Cook County candidates to use the Party name. But Reed offers no support at all for that assumption, which stands at odds with what few relevant facts the record reveals. The Electoral Board found that Timothy Evans, the Party’s most recent mayoral candidate in the city of Chicago, had specifically authorized petitioners' use of the Party name in Cook County. While acknowledging that Evans was not the statutory chairman of the Chicago Party, the Board ruled, and Reed does not dispute, that Evans, “as the only candidate of the Chicago HWP,” was “the only person empowered by the Election Code to act in any official capacity for the HWP.” We have no authoritative ruling on Illinois law to the contrary, and Reed advances no legal argument for the insufficiency of Evans’ authorization.
To be sure, it is not ours to say that Illinois law lacks any constitutional procedural mechanism that petitioners might have been required to, but did not, follow before using the Party name. Our review of §10-2 reveals the possibility that Illinois law empowers a newly established party’s candidate or candidates (here, Evans) merely to appoint party “committeemen,” whose authority to “manage and control the affairs” of the party might include an exclusive right to authorize the use of its name outside the party’s original political subdivision. It seems unlikely, however, that the Supreme Court of Illinois had such reasoning in mind. Any limitation on Evans’s power to authorize like-minded candidates to use the Party name would have had to arise under § 10-2, whereas the order below held simply that petitioners’ use of the Party name “violate[d] the provisions of section 10-5.” In any event, it is not this Court’s role to review a state-court decision on the basis of inconclusive and unar-gued theories of state law that the state court itself found unworthy of mention.
B
As an alternative basis for prohibiting petitioners from running together under the Party name, the Supreme Court of Illinois invoked the statutory requirement of § 10-2 that “[e]ach component of the petition for each district ... be signed by [25,000] qualified voters of the district....” The court apparently held that disqualification of a party’s entire slate of candidates is the appropriate penalty for failing to meet this requirement, and it accordingly treated petitioners’ failure to collect enough signatures for their suburban-district candidates as an adequate ground for disqualifying every candidate running under the HWP name in Cook County.
This is not our first time to consider the constitutionality of an Illinois law governing the number of nominating signatures the organizers of a new party must gather to field candidates in local elections. In Illinois Bd. of Elections v. Socialist Workers Party, 440 U. S. 173 (1979), we examined Illinois’s earlier ballot-access scheme, under which party organizers seeking to field candidates in statewide elections were (as they still are) effectively required to gather 25,000 signatures. See §10-2. At that time, the statute separately required those organizing new parties in political subdivisions to collect signatures totaling at least 5% of the number of people voting at the previous election for offices of that subdivision. In the city of Chicago, the subdivision at issue in Socialist Workers Party, the effect of that provision was to require many more than 25,000 signatures. Although this Court recognized the State’s interest in restricting the ballot to parties with demonstrated public support, the Court took the requirement for statewide contests as an indication that the more onerous standard for local contests was not the least restrictive means of advancing that interest. Id., at 186.
The Illinois Legislature responded to this ruling by amending its statute to cap the 5% requirement for “any district or political subdivision” at 25,000 signatures. Thus, if organizers of a new party wish to field candidates in a large county without separate districts, and if 5% of the number of voters at the previous county election exceeds 25,000, the party now needs to gather only 25,000 signatures.
Under the interpretation of § 10-2 rendered below, however, Illinois law retains the constitutional flaw at issue in Socialist Workers Party by effectively increasing the signature requirement applicable to elections for at least some offices in subdivisions with separate districts. Under that interpretation, the failure of a party’s organizers to obtain 25,000 signatures for each district in which they run candidates disqualifies the party’s candidates in all races within the subdivision. Thus, a prerequisite to establishing a new political party in such multidistrict subdivisions is some multiple of the number of signatures required of new statewide parties. Since petitioners chose to field candidates for the county board seats allocated to the separate districts and, as required by state law, used the “component” (i e., district-specific) form of nominating petition, the State Supreme Court’s construction of §10-2 required petitioners to accumulate 50,000 signatures (25,000 from the city district and another 25,000 from the suburbs) to run any candidates in Cook County elections. The State may not do this in the face of Socialist Workers Party, which forbids it to require petitioners to gather twice as many signatures to field candidates in Cook County as they would need statewide.
Reed nonetheless tries to skirt Socialist Workers Party by advancing what she claims to be a state interest, not addressed by the earlier case, in ensuring that the electoral support for new parties in a multidistrict political subdivision extends to every district. Accepting the legitimacy of the interest claimed would not, however, excuse the requirement’s unconstitutional breadth. Illinois might have compelled the organizers of a new party to demonstrate a distribution of support throughout Cook County without at the same time raising the overall quantum of needed support above what the State expects of new parties fielding candidates only for statewide office. The State might, for example, have required some minimum number of signatures from each of the component districts while maintaining the total signature requirement at 25,000. But cf. Moore v. Ogilvie, 394 U. S. 814 (1969). While we express no opinion as to the constitutionality of any such requirement, what we have said demonstrates that Illinois has not chosen the most narrowly tailored means of advancing even the interest that Reed suggests.
Nor is that the only weakness of Reed’s rationale. Illinois does not require a new party fielding candidates solely for statewide office to apportion its nominating signatures among the various counties or other political subdivisions of the State. See § 10-2; Communist Party of Illinois v. State Bd. of Elections, 518 F. 2d 517 (CA7), cert. denied, 423 U. S. 986 (1975). Organizers of a new party could therefore win access to the statewide ballot, but not the Cook County ballot, by collecting all 25,000 signatures from the county’s city district. But if the State deems it unimportant to ensure that new statewide parties enjoy any distribution of support, it requires elusive logic to demonstrate a serious state interest in demanding such a distribution for new local parties. Thus, as in Socialist Workers Party, the State’s requirements for access to the statewide ballot become criteria in the first instance for judging whether rules of access to local ballots are narrow enough to pass constitutional muster. Reed has adduced no justification for the disparity here.
c
Up to this point, the positions of petitioners and the Board have coincided. They diverge on only one matter: whether requiring the candidates for the suburban-district commissioner seats to obtain 25,000 nominating signatures from the suburbs unduly burdens their right to run for those seats under the Party name. Although petitioners suggest that their showing of support in the city district should qualify their candidates to represent the Party in all races within Cook County, in the absence of any claim that the division of Cook County into separate districts is itself unconstitutional, our precedents foreclose the argument. According to the Board’s uncontested arithmetic, the 25,000 signature rule requires the support of only slightly more than 2% of suburban voters, see Brief for Respondent Board in No. 90-1126, p. 9, and n. 7, a considerably more lenient restriction than the one we upheld in Jenness v. Fortson, 403 U. S. 431 (1971) (involving a 5% requirement). Just as the State may not cite the Party’s failure in the suburbs as reason for disqualifying its candidates in urban Cook County, neither may the Party cite its success in the city district as a sufficient condition for running candidates in the suburbs.
>
These cases present one final issue, which we are unable to resolve. Some of Cook County’s judges are elected by citizens of the entire county, and others by citizens of the separate districts. In responding to Reed’s objection that the HWP had not fielded candidates for any elected judicial offices in Cook County, the Circuit Court held that, under § 10-2, “the exclusion of judicial candidates on the slate was a failure to fulfill the ‘complete slate requirement’ of the Election Code.” The court then overruled the Electoral Board and treated this failure as an alternative ground for invalidating the Party’s entire slate.
We decline to consider whether that ruling was constitutional. The Supreme Court of Illinois itself did not address it and therefore did not decide whether, under Illinois law, the Party’s omission of judicial candidates doomed the entire slate. We therefore remand these cases to that court for its prompt resolution of this issue. See Bacchus Imports, Ltd. v. Dias, 468 U. S. 263, 277 (1984); see also McCluney v. Jos. Schlitz Brewing Co., 454 U. S. 1071, 1073-1074 (1981) (Stevens, J., dissenting).
The judgment of the State Supreme Court is affirmed in part and reversed in part, and the cases are remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Justice Thomas took no part in the consideration or decision of these cases.
More precisely, they must collect the signatures of 25,000 voters or 1% of the number of voters at the preceding statewide general election, whichever is less. Ill. Rev. Stat., ch. 46, § 10-2 (1989). Given the State’s population, the 26,000 signature requirement applies.
The statute reads in relevant part:
“In the case of a petition to form a new political party within a political subdivision in which officers are to be elected from districts and at-large, such petition shall consist of separate components for each district from which an officer is to be elected. Each component shall be circulated only within a district of the political subdivision and signed only by qualified electors who are residents of such district. Each sheet of such petition must contain a complete list of the names of the candidates of the party for all offices to be filled in the political subdivision at large, but' the sheets comprising each component shall also contain the names of those candidates to be elected from the particular district. Each component of the petition for each district from which an officer is to be elected must be signed by qualified voters of the district equalling in number not less than 5% of the number of voters who voted at the next preceding regular election in such district at which an officer was elected to serve the district. The entire petition, including all components, must be signed by a total of qualified voters of the entire political subdivision equalling in number not less than 5% of the number of voters who voted at the next preceding regular election in such political subdivision at which an officer was elected to serve the political subdivision at large.”
The statute caps the 5% requirement for both district and subdivision petitions at 25,000 signatures, the number effectively required on statewide petitions. Cook County and its districts are so large that this cap applies to each.
These are the current districts of Cook County. We have learned that in a November 1990 referendum, the voters of Cook County adopted an ordinance providing for the division of the county by 1994 into 17 districts, each of which will send one commissioner to the county board. This Court has been unable to secure any official record of the new ordinance, however. In any event, the parties have not treated this issue as having any bearing on our disposition of these cases, and we do not see how it could have.
Reed based her argument on what the parties call the “complete slate requirement” of § 10-2. The parties occasionally use the same term in their discussion of a separate issue, whether petitioners’ failure to collect sufficient signatures in the suburban district voids their entire slate. For clarity, we avoid using the term altogether.
The Circuit Court also held that petitioners’ failure to gather 25,000 signatures for the candidates running under the Party name for office in the Metropolitan Water Reclamation District disqualified those candidates, but not the rest of the slate, because the Water Reclamation District was a separate political subdivision from Cook County. This ruling was not appealed to the Illinois Supreme Court and is not before this Court.
Three of the four justices in the majority have left the court since the date of the order.
Under Illinois practice, if the Board’s decision is appealed, it joins the prevailing party in support of its own decision.
As in Anderson v. Celebrezze, 460 U. S. 780 (1983), “we base our conclusions directly on the First and Fourteenth Amendments and do not engage in a separate Equal Protection Clause analysis. We rely, however, on the analysis in a number of our prior election cases resting on the Equal Protection Clause of the Fourteenth Amendment.” Id., at 786-787, n. 7.
Reed did seem to make a version of this argument in her brief to the Illinois Supreme Court. See Brief for Appellees Reed et al. in No. 70833 (Sup. Ct. Ill.), pp. 20-21. Moreover, in the one sentence that it devotes to the topic, the Circuit Court makes a similar observation: “While Timothy C. Evans was the only candidate of the Harold Washington Party, his only power, pursuant to § 10-2 of the Election Code, was the ability to appoint interim committeemen.” See App. to Pet. for Cert, in No. 90-1435, p. 19a. Nonetheless, these passages are inadequate to prove that the Illinois Supreme Court adopted the argument, particularly since Reed arguably waived it by not raising it in her original “Objector’s Petition” to the Electoral Board. See App. 14-15. There, she claimed only that petitioners’ use of the Party name violated § 10-5.
To an extent, history explains the anomaly. Moore v. Ogilvie, 394 U. S. 814 (1969), together with the Seventh Circuit’s decision in Communist Party of Illinois v. State Bd. of Elections, 618 F. 2d 517 (1975), left the ballot-access requirements for statewide elections less stringent, for the first time, than the requirements for any local ballot. These were the same legal developments, in fact, that led to the anomaly at issue in Illinois Bd. of Elections v. Socialist Workers Party, 440 U. S. 173 (1979). Yet, as we noted there, an explanation is not the same as a justification. Id., at 187; see also id., at 189 (Stevens, J., concurring in part and concurring in judgment); id., at 190-191 (Rehnquist, J., concurring in judgment). “Historical accident, without more, cannot constitute a compelling state interest.” Id., at 187.
Among other possibilities, the Supreme Court of Illinois might agree with the Board’s conclusion that the judgeships at issue are not offices of the same “political subdivision” as nonjudicial offices within Cook County. That court might also construe the decision in Anderson v. Schneider, 67 Ill. 2d 166, 366 N. E. 2d 900 (1977), to hold that an omission of judicial candidates should not invalidate the rest of the slate.
To restate our conclusion, any rule, whether or not denominated the “complete slate” requirement, see, e. g., post, at 298, 299 (dissenting opinion’s use of the term in this context); App. to Pet. for Cert, in No. 90-1435, pp. 23a-24a (Circuit Court’s use of the term in this context), that disqualifies petitioners’ entire slate for failure to collect 25,000 signatures wholly from the suburban district would be unconstitutional for the reasons given in Part III-B above. We express no opinion as to the constitutionality of a “complete slate requirement” that would invalidate petitioners’ slate for their failure to field judicial candidates.
Question: What is the issue of the decision?
01. voting
02. Voting Rights Act of 1965, plus amendments
03. ballot access (of candidates and political parties)
04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action)
05. desegregation, schools
06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions.
07. affirmative action
08. slavery or indenture
09. sit-in demonstrations (protests against racial discrimination in places of public accommodation)
10. reapportionment: other than plans governed by the Voting Rights Act
11. debtors' rights
12. deportation (cf. immigration and naturalization)
13. employability of aliens (cf. immigration and naturalization)
14. sex discrimination (excluding sex discrimination in employment)
15. sex discrimination in employment (cf. sex discrimination)
16. Indians (other than pertains to state jurisdiction over)
17. Indians, state jurisdiction over
18. juveniles (cf. rights of illegitimates)
19. poverty law, constitutional
20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision.
21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits
22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes
23. residency requirements: durational, plus discrimination against nonresidents
24. military: draftee, or person subject to induction
25. military: active duty
26. military: veteran
27. immigration and naturalization: permanent residence
28. immigration and naturalization: citizenship
29. immigration and naturalization: loss of citizenship, denaturalization
30. immigration and naturalization: access to public education
31. immigration and naturalization: welfare benefits
32. immigration and naturalization: miscellaneous
33. indigents: appointment of counsel (cf. right to counsel)
34. indigents: inadequate representation by counsel (cf. right to counsel)
35. indigents: payment of fine
36. indigents: costs or filing fees
37. indigents: U.S. Supreme Court docketing fee
38. indigents: transcript
39. indigents: assistance of psychiatrist
40. indigents: miscellaneous
41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty)
42. miscellaneous civil rights (cf. comity: civil rights)
Answer:
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
UNITED STATES v. LANIER
No. 95-1717.
Argued January 7, 1997
Decided March 31, 1997
Deputy Solicitor General Waxman argued the cause for the United States. On the briefs were Acting Solicitor General Dellinger, Assistant Attorney General Patrick, Deputy Solicitor General Bender, Paul R. Q. Wolf son, Jessica Dunsay Silver, and Thomas E. Chandler.
Alfred H. Knight, by appointment of the Court, 519 U. S. 804, argued the cause and filed a brief for respondent.
Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Marjorie Heins and Steven R. Shapiro; for the NOW Legal Defense and Education Fund et al. by Lynn Hecht Schafran and Martha F. Davis; for the Southern Poverty Law Center et al. by Mary-Christine Sungaila, Gregory R. Smith, J. Richard Cohen, and Brian Levin; and for Vivian Forsythe-Arehie et al. by Catharine A. MacKinnon.
Justice Souter
delivered the opinion of the Court.
Respondent David Lanier was convicted under 18 U. S. C. § 242 of criminally violating the constitutional rights of five women by assaulting them sexually while Lanier served as a state judge. The Sixth Circuit reversed his convictions on the ground that the constitutional right in issue had not previously been identified by this Court in a case with fundamentally similar facts. The question is whether this standard of notice is higher than the Constitution requires, and we hold that it is.
I
David Lanier was formerly the sole state Chancery Court judge for two rural counties in western Tennessee. The trial record, read most favorably to the jury’s verdict, shows that from 1989 to 1991, while Lanier was in office, he sexually assaulted several women in his judicial chambers. The two most serious assaults were against a woman whose divorce proceedings had come before Lanier and whose daughter’s custody remained subject to his jurisdiction. When the woman applied for a secretarial job at Lanier’s courthouse, Lanier interviewed her and suggested that he might have to reexamine the daughter’s custody. When the woman got up to leave, Lanier grabbed her, sexually assaulted her, and finally committed oral rape. A few weeks later, Lanier inveigled the woman into returning to the courthouse again to get information about another job opportunity, and again sexually assaulted and orally raped her. App. 44-67. On five other occasions Lanier sexually assaulted four other women: two of his secretaries, a Youth Services Officer of the juvenile court over which Lanier presided, and a local coordinator for a federal program who was in Lanier’s chambers to discuss a matter affecting the same court. Id., at 13-43, 67-109.
Ultimately, Lanier was charged with 11 violations of §242, each count of the indictment alleging that, acting willfully and under color of Tennessee law, he had deprived the victim of “rights and privileges which are secured and protected by the Constitution and the laws of the United States, namely the right not to be deprived of liberty without due process of law, including the right to be free from wilful sexual assault.” Id., at 5-12. Before trial, Lanier moved to dismiss the indictment on the ground that § 242 is void for vagueness. The District Court denied the motion.
The trial judge instructed the jury on the Government’s burden to prove as an element of the offense that the defendant deprived the victim of rights secured or protected by the Constitution or laws of the United States:
“Included in the liberty protected by the [Due Process Clause of the] Fourteenth Amendment is the concept of personal bodily integrity and the right to be free of unauthorized and unlawful physical abuse by state intrusion. Thus, this protected right of liberty provides that no person shall be subject to physical or bodily abuse without lawful justification by a state official acting or claiming to act under the color of the laws of any state of the United States when that official’s conduct is so demeaning and harmful under all the circumstances as to shock one’s conscience]. Freedom from such physical abuse includes the right to be free from certain sexually motivated physical assaults and coerced sexual battery. It is not, however, every unjustified touching or grabbing by a state official that constitutes a violation of a person’s constitutional rights. The physical abuse must be of a serious substantial nature that involves physical force, mental coercion, bodily injury or emotional damage which is shocking to one’s conscience].” Id., at 186-187.
The jury returned verdicts of guilty on seven counts, and not guilty on three (one count having been dismissed at the close of the Government’s evidence). It also found that the two oral rapes resulted in “bodily injury,” for which Lanier was subject to 10-year terms of imprisonment on each count, in addition to 1-year terms under the other five counts of conviction, see §242. He was sentenced to consecutive maximum terms totaling 25 years.
A panel of the Court of Appeals for the Sixth Circuit affirmed the convictions and sentence, 33 F. 3d 639 (1994), but the full court vacated that decision and granted rehearing en banc, 43 F. 3d 1033 (1995). On rehearing, the court set aside Lanier’s convictions for “lack of any notice to the public that this ambiguous criminal statute [i. e., § 242] includes simple or sexual assault crimes within its coverage.” 73 F. 3d 1380, 1384 (1996). Invoking general canons for interpreting criminal statutes, as well as this Court’s plurality opinion in Screws v. United States, 325 U. S. 91 (1945), the Sixth Circuit held that criminal liability may be imposed under § 242 only if the constitutional right said to have been violated is first identified in a decision of this Court (not any other federal, or state, court), and only when the right has been held to apply in “a factual situation fundamentally similar to the one at bar.” 73 F. 3d, at 1393. The Court of Appeals regarded these combined requirements as “substantially higher than the ‘clearly established’ standard used to judge qualified immunity” in civil cases under Rev. Stat. § 1979, 42 U. S. C. § 1983. 73 F. 3d, at 1393. Finding no decision of this Court applying a right to be free from unjustified assault or invasions of bodily integrity in a situation “fundamentally similar” to those charged, the Sixth Circuit reversed the judgment of conviction with instructions to dismiss the indictment. Two judges would not have dismissed the felony counts charging the oral rapes but concurred in dismissing the misdemeanor counts, while three members of the court dissented as to all dismissals.
We granted certiorari to review the standard for determining whether particular conduct falls within the range of criminal liability under §242. 518 U. S. 1004 (1996). We now vacate and remand.
II
Section 242 is a Reconstruction Era civil rights statute making it criminal to act (1) “willfully” and (2) under color of law (3) to deprive a person of rights protected by the Constitution or laws of the United States. 18 U. S. C. §242; Screws v. United States, supra. The en banc decision of the Sixth Circuit dealt only with the last of these elements, and it is with that element alone that we are concerned here.
The general language of §242, referring to “the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States,” is matched by the breadth of its companion conspiracy statute, §241, which speaks of conspiracies to prevent “the free exercise or enjoyment of any right or privilege secured to [any person] by the Constitution or laws of the United States.” Thus, in lieu of describing the specific conduct it forbids, each statute’s general terms incorporate constitutional law by reference, see United States v. Kozminski, 487 U. S. 931, 941 (1988); United States v. Price, 383 U. S. 787, 797, 805 (1966), and many of the incorporated constitutional guarantees are, of course, themselves stated with some catholicity of phrasing. The result is that neither the statutes nor a good many of their constitutional referents delineate the range of forbidden conduct with particularity.
The right to due process enforced by § 242 and said to have been violated by Lanier presents a case in point, with the irony that a prosecution to enforce one application of its spacious protection of liberty can threaten the accused with deprivation of another: what Justice Holmes spoke of as “fair warning ... in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.” McBoyle v. United States, 283 U. S. 25, 27 (1931). “ ‘The . . . principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.’ ” Bouie v. City of Columbia, 378 U. S. 347, 351 (1964) (quoting United States v. Harriss, 347 U. S. 612, 617 (1954)).
There are three related manifestations of the fair warning requirement. First, the vagueness doctrine bars enforcement of “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. General Constr. Co., 269 U. S. 385, 391 (1926); accord, Kolender v. Lawson, 461 U. S. 352, 357 (1983); Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). Second, as a sort of “junior version of the vagueness doctrine,” H. Packer, The Limits of the Criminal Sanction 95 (1968), the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered. See, e. g., Liparota v. United States, 471 U. S. 419, 427 (1985); United States v. Bass, 404 U. S. 336, 347-348 (1971); McBoyle, supra, at 27. Third, although clarity at the requisite level may be supplied by judicial gloss on an otherwise uncertain statute, see, e. g., Bouie, supra, at 357-359; Kolender, supra, at 355-356; Lanzetta, supra, at 455-457; Jeffries, Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 207 (1985), due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope, see, e. g., Marks v. United States, 430 U. S. 188, 191-192 (1977); Rabe v. Washington, 405 U. S. 313 (1972) (per curiam); Bouie, supra, at 353-354; cf. U. S. Const., Art. I, § 9, cl. 3; id., §10, cl. 1; Bouie, supra, at 353-354 (Ex Post Facto Clauses bar legislatures from making substantive criminal offenses retroactive). In each of these guises, the touchstone is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant’s conduct was criminal.
We applied this standard in Screws v. United States, 325 U. S. 91 (1945), which recognized that the expansive language of due process that provides a basis for judicial review is, when incorporated by reference into §242, generally ill suited to the far different task of giving fair warning about the scope of criminal liability. The Screws plurality identified the affront to the warning requirement posed by employing § 242 to place “the accused ... on trial for an offense, the nature of which the statute does not define and hence of which it gives no warning.” Id., at 101. At the same time, the same Justices recognized that this constitutional difficulty does not arise when the accused is charged with violating a “right which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them.” Id., at 104. When broad constitutional requirements have been “made specific” by the text or settled interpretations, willful violators “certainly are in no position to say that they had no adequate advance notice that they would be visited with punishment. . . . [T]hey are not punished for violating an unknowable something.” Id., at 105. Accordingly, Screws limited the statute’s coverage to rights fairly warned of, having been “made specific” by the time of the charged conduct. See also Kozminski, supra, at 941 (parallel construction of §241).
The Sixth Circuit, in this case, added two glosses to the made-specific standard of fair warning. In its view, a generally phrased constitutional right has been made specific within the meaning of Screws only if a prior decision of this Court has declared the right, and then only when this Court has applied its ruling in a case with facts “fundamentally similar” to the case being prosecuted. 73 F. 3d, at 1393. None of the considerations advanced in this case, however, persuade us that either a decision of this Court or the extreme level of factual specificity envisioned by the Court of Appeals is necessary in every instance to give fair warning.
First, contrary to the Court of Appeals, see ibid., we think it unsound to read Screws as reasoning that only this Court’s decisions could provide the required warning. Although the Screws plurality gave two examples involving decisions of the Court, their opinion referred in general terms to rights made specific by “decisions interpreting” the Constitution, see 325 U. S., at 104 (plurality opinion), and no subsequent case has held that the universe of relevant interpretive decisions is confined to our opinions. While United States v. Kozminski, 487 U. S. 931 (1988), a case under §241 for violating Thirteenth Amendment rights, did characterize our task as ascertaining the crime charged “by looking to the scope of the Thirteenth Amendment prohibition . . . specified in our prior decisions,” id., at 941, in at least one other case we have specifically referred to a decision of a Court of Appeals in defining the established scope of a constitutional right for purposes of §241 liability, see Anderson v. United States, 417 U. S. 211, 223-227 (1974). It is also to the point, as we explain below, that in applying the rule of qualified immunity under 42 U. S. C. § 1983 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), we have referred to decisions of the Courts of Appeals when enquiring whether a right was “clearly established.” See Mitchell v. Forsyth, 472 U. S. 511, 533 (1985); Davis v. Scherer, 468 U. S. 183, 191-192 (1984); see also id., at 203-205 (Brennan, J., concurring in part and dissenting in part); Elder v. Holloway, 510 U. S. 510, 516 (1994) (treating Court of Appeals decision as “relevant authority” that must be considered as part of qualified immunity enquiry). Although the Sixth Circuit was concerned, and rightly so, that disparate decisions in various Circuits might leave the law insufficiently certain even on a point widely considered, such a circumstance may be taken into account in deciding whether the warning is fair enough, without any need for a categorical rule that decisions of the Courts of Appeals and other courts are inadequate as a matter of law to provide it.
Nor have our decisions demanded precedents that applied the right at issue to a factual situation that is “fundamentally similar” at the level of specificity meant by the Sixth Circuit in using that phrase. To the contrary, we have upheld convictions under § 241 or § 242 despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights. See United States v. Guest, 383 U. S. 745, 759, n. 17 (1966) (prior cases established right of interstate travel, but later case was the first to address the deprivation of this right by private persons); United States v. Saylor, 322 U. S. 385 (1944) (pre-Screws; prior cases established right to have legitimate vote counted, whereas later case involved dilution of legitimate votes through casting of fraudulent ballots); United States v. Classic, 313 U. S. 299, 321-324 (1941) (pre-Screws; prior cases established right to have vote counted in general election, whereas later case involved primary election); see also Screws, 325 U. S., at 106 (stating that Classic met the test being announced).
But even putting these examples aside, we think that the Sixth Circuit’s “fundamentally similar” standard would lead trial judges to demand a degree of certainty at once unnecessarily high and likely to beget much wrangling. This danger flows from the Court of Appeals’ stated view, 73 F. 3d, at 1393, that due process under § 242 demands more than the “clearly established” law required for a public officer to be held civilly liable for a constitutional violation under § 1983 or Bivens, see Anderson v. Creighton, 483 U. S. 635 (1987) (Bivens action); Davis v. Scherer, supra (§1983 action). This, we think, is error.
In the civil sphere, we have explained that qualified immunity seeks to ensure that defendants “reasonably can anticipate when their conduct may give rise to liability,” id., at 195, by attaching liability only if “[t]he contours of the right [violated are] sufficiently clear that a reasonable official would understand that what he is doing violates that right,” Anderson, supra, at 640. So conceived, the object of the “clearly established” immunity standard is not different from that of “fair warning” as it relates to law “made specific” for the purpose of validly applying §242. The fact that one has a civil and the other a criminal law role is of no significance; both serve the same objective, and in effect the qualified immunity test is simply the adaptation of the fair warning standard to give officials (and, ultimately, governments) the same protection from civil liability and its consequences that individuals have traditionally possessed in the face of vague criminal statutes. To require something clearer than “clearly established” would, then, call for something beyond “fair warning.”
This is not to say, of course, that the single warning standard points to a single level of specificity sufficient in every instance. In some circumstances, as when an earlier case expressly leaves open whether a general rule applies to the particular type of conduct at issue, a very high degree of prior factual particularity may be necessary. See, e. g., Mitchell v. Forsyth, supra, at 530-535, and n. 12. But general statements of the law are not inherently incapable of giving fair and clear warning, and in other instances a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though “the very action in question has [not] previously been held unlawful,” Anderson, supra, at 640. As Judge Daughtrey noted in her dissenting opinion in this case: “ ‘The easiest cases don’t even arise. There has never been ... a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal] liability.’” 73 F. 3d, at 1410 (quoting K. H. Through Murphy v. Morgan, 914 F. 2d 846, 851 (CA7 1990)); see also Colten v. Kentucky, 407 U. S. 104, 110 (1972) (due process requirements are not “designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited”); Williams v. United States, 341 U. S. 97, 101 (1951) (holding that beating to obtain a confession plainly violates § 242). In sum, as with civil liability under § 1983 or Bivens, all that can usefully be said about criminal liability under §242 is that it may be imposed for deprivation of a constitutional right if, but only if, “in the light of pre-existing law the unlawfulness [under the Constitution is] apparent,” Anderson, supra, at 640. Where it is, the constitutional requirement of fair warning is satisfied.
Because the Court of Appeals used the wrong gauge in deciding whether prior judicial decisions gave fair warning that respondent’s actions violated constitutional rights, we vacate the judgment and remand the case for application of the proper standard.
It is so ordered.
The present § 242 has its roots in portions of three Reconstruction Era Civil Rights Acts, whose substantive criminal provisions were consolidated in a single section in 1874. See 2 Cong. Rec. 827-828 (1874) (describing derivation of consolidated criminal civil rights law from §§ 1 and 2 of the Civil Rights Act of 1866, 14 Stat. 27; §§ 16 and 17 of the Civil Rights Act of 1870,16 Stat. 144; and § 1 of the Civil Rights Act of 1871,17 Stat. 13). Although those statutory forebears created criminal sanctions only for violations of some enumerated rights and privileges, the consolidated statute of 1874 expanded the law’s scope to apply to deprivations of all constitutional rights, despite the “customary stout assertions of the codifiers that they had merely clarified and reorganized without changing substance.” United States v. Price, 383 U. S. 787, 803 (1966). Since the 1874 recodification, Congress has revisited § 242 on several occasions, without contracting its substantive scope. See 35 Stat. 1092 (1909) (adding willfulness requirement); 82 Stat. 75 (1968) (enhancing penalties for some violations); 102 Stat. 4396 (1988) (same); 108 Stat. 1970, 2109, 2113, 2147 (1994) (same).
Thus, we do not address the argument, pressed by respondent, that the actions for which he was convicted were not taken under color of law. The Sixth Circuit discussed that issue only in the original panel opinion, subsequently vacated, but did not reach the question in the en banc decision under review here. To the extent the issue remains open, we leave its consideration in the first instance to the Court of Appeals on remand.
“Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens,” shall be subject to specified criminal penalties.
Insofar as pertinent: “If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same,” they shall be subject to specified criminal penalties.
The fair warning requirement also reflects the deference due to the legislature, which possesses the power to define crimes and their punishment. See United States v. Wiltberger, 5 Wheat. 76, 95 (1820); United States v. Aguilar, 515 U. S. 593, 600 (1995). See generally H. Packer, The Limits of the Criminal Sanction 79-96 (1968) (discussing “principle of legality,” “that conduct may not be treated as criminal unless it has been so defined by [a competent] authority . . . before it has taken place,” as implementing separation of powers, providing notice, and preventing abuses of official discretion) (quotation at 80); Jeffries, Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189 (1985).
This process of “making specific” does not, as the Sixth Circuit believed, qualify Screws as “the only Supreme Court case in our legal history in which a majority of the Court seems [to have been] willing to create a common law crime.” 73 F. 3d 1380, 1391 (1996). Federal crimes are defined by Congress, not the courts, Kozminski, 487 U. S., at 939; United States v. Wiltberger, supra, at 95, and Screws did not “create a common Iaw crime”; it narrowly construed a broadly worded Act of Congress, and the policies favoring strict construction of criminal statutes oblige us to carry out congressional intent as far as the Constitution will admit, see Kozminski, supra, at 939; Huddleston v. United States, 415 U. S. 814, 831 (1974); United States v. Morris, 14 Pet. 464, 475 (1840). Nor is §242’s pedigree as an Act of Congress tainted by its birth at the hands of codifiers who arguably made substantive changes in the pre-existing law, see n. 1, supra, as the Sixth Circuit concluded from the statutory history, 73 F. 3d, at 1384-1387. The legislative intent of Congress is to be derived from the language and structure of the statute itself, if possible, not from the assertions of codifiers directly at odds with clear statutory language. See, e. g., United States v. Wells, 519 U. S. 482, 496-497 (1997). Further, the Sixth Circuit’s conclusion that Congress never intended § 242 to extend to “newly-created constitutional rights,” 73 F. 3d, at 1387, is belied by the fact that Congress has increased the penalties for the section’s violation several times since Screws was decided, without contracting its substantive scope, see n. 1, supra.
We also leave consideration of other issues that may remain open to the Court of Appeals on remand. Several of the arguments tendered by-respondent here are, however, plainly without merit and need not be left open. First, Lanier’s contention that Screws excluded rights protected by the Due Process Clause of the Fourteenth Amendment from the ambit of §242 is contradicted by the language of Screws itself as well as later eases. See Screws v. United States, 325 U. S. 91, 100, 106 (1945); United States v. Price, 383 U. S., at 789, and n. 2,793 (§ 242 is enforcement legislation enacted under §5 of the Fourteenth Amendment and encompasses violations of rights guaranteed under the Due Process Clause). Second, although DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189 (1989), generally limits the constitutional duty of officials to protect against assault by private parties to cases where the victim is in custody, DeShaney does not hold, as respondent maintains, that there is no constitutional right to be free from assault committed by state officials themselves outside of a custodial setting. Third, contrary to respondent’s claim, Graham v. Connor, 490 U. S. 386, 394 (1989), does not hold that all constitutional claims relating to physically abusive government conduct must arise under either the Fourth or Eighth Amendments; rather, Graham simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.
Question: What is the issue of the decision?
01. involuntary confession
02. habeas corpus
03. plea bargaining: the constitutionality of and/or the circumstances of its exercise
04. retroactivity (of newly announced or newly enacted constitutional or statutory rights)
05. search and seizure (other than as pertains to vehicles or Crime Control Act)
06. search and seizure, vehicles
07. search and seizure, Crime Control Act
08. contempt of court or congress
09. self-incrimination (other than as pertains to Miranda or immunity from prosecution)
10. Miranda warnings
11. self-incrimination, immunity from prosecution
12. right to counsel (cf. indigents appointment of counsel or inadequate representation)
13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty)
14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts)
15. line-up
16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations)
17. double jeopardy
18. ex post facto (state)
19. extra-legal jury influences: miscellaneous
20. extra-legal jury influences: prejudicial statements or evidence
21. extra-legal jury influences: contact with jurors outside courtroom
22. extra-legal jury influences: jury instructions (not necessarily in criminal cases)
23. extra-legal jury influences: voir dire (not necessarily a criminal case)
24. extra-legal jury influences: prison garb or appearance
25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment)
26. extra-legal jury influences: pretrial publicity
27. confrontation (right to confront accuser, call and cross-examine witnesses)
28. subconstitutional fair procedure: confession of error
29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy)
30. subconstitutional fair procedure: entrapment
31. subconstitutional fair procedure: exhaustion of remedies
32. subconstitutional fair procedure: fugitive from justice
33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case)
34. subconstitutional fair procedure: stay of execution
35. subconstitutional fair procedure: timeliness
36. subconstitutional fair procedure: miscellaneous
37. Federal Rules of Criminal Procedure
38. statutory construction of criminal laws: assault
39. statutory construction of criminal laws: bank robbery
40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy)
41. statutory construction of criminal laws: escape from custody
42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury)
43. statutory construction of criminal laws: financial (other than in fraud or internal revenue)
44. statutory construction of criminal laws: firearms
45. statutory construction of criminal laws: fraud
46. statutory construction of criminal laws: gambling
47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951
48. statutory construction of criminal laws: immigration (cf. immigration and naturalization)
49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation)
50. statutory construction of criminal laws: Mann Act and related statutes
51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol
52. statutory construction of criminal laws: obstruction of justice
53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements)
54. statutory construction of criminal laws: Travel Act, 18 USC 1952
55. statutory construction of criminal laws: war crimes
56. statutory construction of criminal laws: sentencing guidelines
57. statutory construction of criminal laws: miscellaneous
58. jury trial (right to, as distinct from extra-legal jury influences)
59. speedy trial
60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
GAF CORPORATION, Appellant, v. AMCHEM PRODUCTS, INC.
No. 76-2302.
United States Court of Appeals, Third Circuit.
Argued May 3, 1977.
Decided Jan. 18, 1978.
K. Robert Conrad, Charles J. Bloom, Katherine K. Dodd, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for GAF Corporation, appellant; Walter C. Kehm, GAF Corp., Wayne, N. J., Robert E. Kosinski, Watson, Leavenworth, Kelton & Taggart, New York City, Alan H. Bernstein, Stanley H. Cohen, Caesar, Rivise, Bernstein & Cohen, Philadelphia, Pa., William D. Brene-man, Washington, D. C., Ernest G. Szoke, Amchem Products, Inc., Ambler, Pa., of counsel.
Carl G. Love, Cushman, Darby & Cush-man, Jack L. Lahr, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D. C., for appellee.
Before GIBBONS and HUNTER, Circuit Judges, and LAYTON, District Judge.
Disposition of this appeal was delayed by the court at the request of the appellant pending settlement negotiations, which have not come to fruition.
The Honorable Caleb R. Layton, 3rd, United States District Judge for the District of Delaware, sitting by designation.
OPINION OF THE COURT
GIBBONS, Circuit Judge.
Plaintiff GAF Corporation, a Delaware corporation (GAF), appeals from the grant of summary judgment in favor of Amchem Products, Inc., a Pennsylvania corporation (Amchem). In this diversity action GAF seeks to have a constructive trust declared in its favor over certain foreign patents controlled by Amchem relating to a plant growth regulating acid called 2-chloroethyl phosphonic acid. The theory on which GAF claims that the foreign patents rightfully belong to it is that a GAF employee, Dr. David T. Randall, made the discovery that 2-chloroethyl phosphonic acid would regulate plant growth and disclosed the invention to employees of Amchem. Amchem filed a patent application covering use of the acid and related compounds as plant growth regulators in February, 1967. The foreign patents here in issue are derivative of the American filing. The district court did not determine whether Dr. Randall was the inventor. Rather, the court held that, assuming he was the inventor, GAF was barred by estoppel and laches from seeking the imposition of a constructive trust on the invention in the hands of Amchem. We conclude that there were disputes as to material facts and that these defenses could not be decided on a motion for summary judgment.
The facts, for purposes of summary judgment, are summarized below. GAF is a manufacturer of chemical compounds for use in industry and agriculture. Many of the compounds it markets result from its own research and development efforts. To test agricultural chemicals, nursery and greenhouse facilities are needed. GAF has customarily engaged outside companies having facilities for such testing, among them Amchem. Dr. Anson R. Cooke, Am-chem’s director of biological research, participated in screening agricultural chemicals for GAF and in preparing reports to GAF of the results.
On March 3,1965, GAF gave a number of chemicals to Amchem for testing, including 2-chloroethyl phosphonic acid and an ester of that acid. On January 4,1966, Dr. Cooke informed GAF personnel, including Dr. Randall, that the ester of the acid had shown the remarkable growth regulating property of controlling apical dominance in plants. Apical dominance is the characteristic of some plants to produce a single terminal bud which grows to maturity, inhibiting the growth of other buds and thereby limiting crop yields. A compound which would control apical dominance could dramatically increase such yields.
In the months following the January 4, 1966, meeting Dr. Randall analyzed the chemical structure of the ester compound. He became convinced that it was the acid rather than the ester (a combination of alcohol and acid) which was responsible for the control of apical dominance. Dr. Randall discussed this theory with Dr. Cooke, who rejected it because a sample of the acid had been tested as a plant growth regulator and found to be inactive. Dr. Randall, however, reasoned that the original acid sample might have been impure. When his tests confirmed such impurity, he synthesized a second acid sample and on March 6, 1966, delivered it to Amchem for testing. Am-chem tested the second sample and on May 25, 1966, reported to GAF that the second acid sample regulated plant growth in a manner equal to the ester. This was significant, since the acid was less costly than the ester.
By September, 1966, Amchem decided to commercialize the acid. To do so it needed to neutralize the corrosive effect of the acid on spraying tanks and equipment. In attempting neutralization, however, Amchem found that a gas evolved which caused the entire mixture to bubble over. Dr. Cooke asked Dr. Randall to find a solution. In November, 1966, Dr. Randall identified the gas being released as ethylene gas. It was already known that ethylene gas possessed plant growth regulative properties. Dr. Randall concluded that the plant growth regulating properties of the acid could be explained because the acid caused the release of ethylene gas. He so informed Dr. Leon Katz, Vice President for Research and Development for GAF, who in turn informed Amchem. Both companies appreciated the significance of the discovery that the acid was an ethylene releasing agent, and both recognized that patent protection should be obtained for it and its related compounds.
Looking at the record evidence in the light most favorable to GAF, as on Am-chem’s motion for summary judgment we must, we note that Dr. Randall discovered between January and March of 1966 that the acid, not the ester, was the regulator, and so informed Dr. Cooke. It appears that in the fall of 1966 Dr. Randall discovered that the acid was an ethylene releasing agent and that Dr. Katz so informed Am-chem. Thus it would appear that prior to February 23, 1967, when Amchem filed a United States patent application covering the use of the acid as a plant growth regulator, it had information that Dr. Randall had made the two critical discoveries as to such use.
In March of 1966, as a result of the initial interest shown in the ester, the GAF patent department researched the relevant patent law to determine who could file patent applications. They advised the GAF chemists that patent protection could be obtained for novel chemicals, for novel manufacturing processes to produce new or old chemicals, and for novel uses for known chemicals. They advised that, while GAF would normally file applications for new chemicals and new manufacturing processes, new uses ordinarily would be discovered, and use patents filed, by the company doing the plant screening. Neither the basic acid nor the process for its synthesis was new. The patent department concluded that a use patent would be Amchem’s property. Because of this advice Dr. Randall also believed that any use patent would belong to Amchem.
With GAF’s knowledge Amchem proceeded to prepare and file a use patent application. GAF simultaneously filed patent applications for certain novel compounds relating to the acid. Eventually five separate use applications were filed covering various agricultural uses. In November, 1967, Am-chem informed GAF that it was filing foreign applications for all use patents, and on July 12, 1968, it furnished GAF a list of applications it was processing or had completed processing in 24 foreign countries. Thus GAF was at all times aware that Amchem was seeking broad use protection worldwide. GAF was also aware that Am-chem was undertaking international and domestic marketing.
On May 11, 1970, Walter Kehm was named GAF director of patents. In the course of a review of the company’s patent position respecting the acid, he discovered the advice that had been given to Dr. Randall and others that only a plant screener could discover a new use for an old compound. He concluded that this was an error, and on December 21, 1970, he informed GAF and Dr. Randall that Dr. Randall was the inventor and GAF the legal owner of the patents and applications controlled by Amchem. On January 21, 1971, GAF presented to Amchem its claim to the patents. Amchem refused to acknowledge the claim, and numerous lawsuits followed.
In this dispute over ownership of Am-chem’s foreign patents and applications, the parties agree that Pennsylvania law is controlling. GAF contends that under that law it is the rightful owner since Dr. Randall is the actual inventor and that, acting under mistake, it permitted Amchem to proceed with use applications until it made its claim in January, 1971. As the district court expressed it:
The first mistake was committed by the attorneys in the GAF patent department when they concluded that only a screener could discover a new use of a non-novel compound. This resulted in a GAF patent inquiry limited to novel chemical and process patents, and also caused Dr. Randall’s silence concerning his inventive contributions. The initial mistake led to GAF’s second mistake, i. e., its belief that Amchem had discovered the use of the acid.
399 F.Supp. at 654. Amchem responds that if there were mistakes they were non-mutual, that Amchem changed its position in reliance on GAF’s prior interpretation of the law, and that estoppel and laches bar relief.
The district court concluded that there was no mutual mistake of law or fact, that GAF had knowledge of the facts, that Am-chem relied on a different assumed state of facts to its detriment, and that GAF inexcusably delayed in asserting its rights, to Amchem’s prejudice. Thus it concluded that the defenses of estoppel and laches warranted summary judgment for the defendant. Critical to each of these conclusions is the court’s assertion that “GAF acknowledges that Amchem had no actual knowledge of Dr. Randall’s discovery until 1971,” while at all times GAF is chargeable with such knowledge. For example, the court says that GAF alone made the misinterpretation of the patent law. But if Am-chem had the same knowledge of Dr. Randall's role in discovering the plant regulating use of the acid as GAF, then Amchem either made the same mistaken interpretation of the patent law or made a deliberate misrepresentation to the patent office. If Amchem had the same knowledge of Dr. Randall’s role in the discovery as GAF, it could hardly have relied on a different assumed set of facts to its detriment. And if Amchem had the same knowledge of Dr. Randall’s role in the discovery, it can hardly assert laches for the delay of GAF in calling that role to its attention.
The court’s assertion that “GAF acknowledges that Amchem had no actual knowledge of Dr. Randall’s discovery until 1971” misstates GAF’s position. It claims that Dr. Randall communicated his discovery that the acid, rather than the ester, was the active ingredient to Dr. Cooke prior to May of 1966. There is just as much reason for attributing the knowledge of Amchem’s director of biological research, and alleged inventor, to Amchem as there is for attributing Dr. Randall’s knowledge to GAF. It claims that Dr. Katz informed Amchem that Dr. Randall had discovered that the acid caused the release of ethylene in the fall of 1966. There is no explanation in the court’s opinion as to why the knowledge derived from this disclosure should not be attributed to Amchem. There is in the record, moreover, a letter from Amchem’s Vice President for Research and Development, F. M. Precopio, to the GAF management, urging GAF’s approval of a joint article by Drs. Cooke and Randall on the use of the acid to stimulate flowering of pineapple plants. The letter reads:
The publication, by Cooke and Randall, would establish GAF and Amchem’s discovery of the mechanism of action of the compound and its growth regulator activity. The management of the two companies is aware of their contribution, but the scientific community is not.
Certainly this letter alone supports the inference that Amchem’s management had knowledge of Dr. Randall’s role in the significant discovery disclosed in the use patents. A factfinder might draw a different inference, but on a motion for summary judgment the inference favorable to GAF must prevail.
We think that the evidence of Amchem’s knowledge of Dr. Randall’s role in the discovery prior to the time it filed the first patent application suffices to preclude summary judgment on its estoppel and laches defenses. GAF also claims that there are material issues of disputed fact with respect to Amchem’s reliance and with respect to any prejudice resulting from the delay. We need not explore that contention, since what we have said with respect to Am-chem’s knowledge requires the reversal of the grant of summary judgment.
The judgment appealed from will be reversed and the case remanded for trial.
. There is other litigation, including a patent office interference proceeding, pending in the United States between GAF and Amchem over ownership of the now-issued Amchem U.S. Patent 3,879,188. There is also litigation pending in France, West Germany, and the United Kingdom over ownership of patents issued to Amchem in those jurisdictions.
. GAF Corp. v. Amchem Prod, Inc., 399 F.Supp. 647 (1975).
. See Becher v. Contorne Laboratories, 279 U.S. 388, 49 U.S. 356, 73 L.Ed. 752 (1929).
. 399 F.Supp. at 658.
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_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
DIAMOND ALKALI CO. v. DRISCOLL, Collector of Internal Revenue.
No. 7741.
Circuit Court of Appeals, Third Circuit.
Argued Oct. 9, 1941.
Reargued Dec. 19, 1941.
Decided Feb. 16, 1942.
Paul S. McMahon, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Gerald L. Wallace, Sp. Asst, to the Atty. Gen., Charles F. Uhl, U. S. Atty., and Elliott W. Finkel, Asst. U. S. Atty., both of Pittsburgh, Pa., on the brief), for appellant.
Joseph G. Robinson, of Pittsburgh, Pa. (W. A. Seifert and William Wallace Booth, both of Pittsburgh, Pa., and Reed, Smith, Shaw & McClay, of Pittsburgh, Pa., on the brief), for appellee.
Before BIGGS, MARIS, and GOODRICH, Circuit Judges.
GOODRICH, Circuit Judge.
The plaintiff taxpayer in this case seeks to recover against the collector for a portion of its capital stock tax for the period ending June 30, 1935. The tax has been paid, with the appropriate steps to preserve its rights by the taxpayer. Now it sues to recover the portion which it claims was erroneously exacted. Its claim was sustained by the learned District Judge in an opinion reported in 37 F.Supp. 536. The collector appeals to this court.
The essential facts are few. The plaintiff, a Delaware corporation, filed its original declaration of capital stock value for the period ending June 30, 1934. In its return for the next year the taxpayer declared upon an adjusted valuation of capital stock by which the capital was reduced. The claimed reduction is the basis for this litigation. Previous to 1934 the corporation had purchased some of its outstanding shares; these were carried as treasury stock. In 1934 additional shares were purchased. All of the latter and some of the shares previously bought were retired in 1934. The taxpayer claims that the cost or other basis of all the stock thus retired may be deducted in determining the adjustment of its capital stock valuation. The collector’s position is that only those purchased and retired in 1934 may be considered.
The statute in question is Section 701(f) of the Revenue Act of 1934. The controversy here turns upon clause (A) which permits adjustment of the capital stock value originally declared by deducting “the value of property distributed in liquidation to shareholders”. Other statutory references are relevant. Section 701 provides that adjustment for the year shall be computed- according to the income-tax law applicable to such year. The income-tax law applicable here is the Revenue Act of 1934, which provides, in section 115(c), 26 U.S.C.A. Int.Rev.Acts, pages 703, 704, that: “ * * * amounts distributed in partial liquidation of a corporation shall be treated as in part or full payment in exchange for the stock * * * ”. Subdivision (i) of the same section defines “amounts distributed in partial liquidation” as “a distribution by a corporation in complete cancellation or redemption of a part of its stock * * *
It is clear from the language in the statutory definition that a distribution in partial liquidation involves two things. One is a distribution to the shareholders; the other is the cancellation or redemption of stock. Thus when a corporation distributes part of its surplus to its shareholders without retiring any of its stock, this is not a distribution in liquidation for our purposes, even though the value of each share is reduced by reason of this distribution. Arthur Iron Mining Co. v. Landy, 8 Cir, 1939, 103 F.2d 164; Beattie Inv. Co. v. United States, 8 Cir, 1939, 101 F.2d 850; Koppers Co. v. Driscoll, D.C.W.D.Pa. 1941, 40 F.Supp. 57. So, also, if the corporation buys some of its own shares and holds them as treasury stock that is not a distribution in liquidation. See Amelia H. Cohen Trust v. Commissioner of Internal Revenue, 3 Cir, 1941, 121 F.2d 689, and authorities cited. Indeed such a dealing in its own shares may, under some circumstances, constitute taxable gain or loss. Commissioner of Internal Revenue v. S. A. Woods Mach Co, 1 Cir, 1932, 57 F.2d 635.
When the plaintiff corporation acquired the shares of its own stock prior to 1934 it made a distribution in fact to the extent of the consideration paid to those from whom the shares were acquired. But this distribution became a distribution in partial liquidation when the shares were retired. The effective date was February 13, .1934 when the certificate pursuant to the Delaware statute was filed with the Secretary of the State of Delaware. Between the purchase of its shares by the corporation and that which completed a distribution in partial liquidation, comes the original declaration of the taxpayer of its capital stock. This declaration, by the terms of the act, speaks as of the close of the last income tax year.
. The language of § 701(f), already quoted, dealing with “adjusted declared value” for each income tax year refers it to the period “from the date as of which the original declared value was declared to the close of its last income-tax taxable year ending at or prior to the close of the year for which the tax is imposed by this section”.
This language seems to" confine the time for the effectiveness of the distribution in partial liquidation to the calendar year 1934 in this case. The distribution in fact as to the stock acquired earlier, had taken place prior to 1934. In 1934 occurred the events which made it final. The shares were retired and could not be resold. But that fact does not, we think, entitle us to treat the whole transaction as one in 1934 when the buying of the shares, the operation which factually reduced the capital investment in the taxpayer’s business had occurred before that year.
The taxpayer had one opportunity to determine the effect of the earlier stock acquisitions when it made its original capital stock return. The stock was then in its treasury. To allow what is asked for here would be to permit it to change its mind about the treatment,-for capital stock purposes, of what it had already acquired. We think it may not do so.
There are no judicial precedents in point. The Collector buttresses his argument by reference to an opinion by the Assistant General Counsel for the Bureau of Internal Revenue. If the language therein indicates that there might be a distribution in partial liquidation during one year by retirement of stock bought in a previous year in accordance with a plan for purchase and retirement, we do not pass upon it. In the case at bar there was no such plan shown. Nor does the Collector insist that there must be where purchase and retirement occur in the same year. We confine ■ourselves to the facts of the immediate case. Upon them we think the taxpayer was not entitled to deduct from its 1934 declared value the cost of the shares acquired in the previous years.
The judgment of the District Court is reversed.
“,(f) For the first year ending June 30 in respect of which a tax is imposed by this section upon any corporation, the adjusted declared value shall be the value, as declared by the corporation in its first return under this section (which declaration of value cannot be amended), as of the close of its last income-tax taxable year ending at or prior to the close of the year for which the tax is imposed by this section * * ®. For any subsequent year ending June 30, the adjusted declared value in the case of a domestic corporation shall be the original declared value plus * * *, and minus (A) the value of property distributed in liquidation to shareholders * * *; adjustment being made for each income-tax taxable year included in the period from the date as of which the original declared value was declared to the dose of its last income-tax taxable year ending at or prior to the close of the year for which the tax is imposed by this section. The amount of such adjustment for each such year shall be computed * * * according to the income tax law applicable to such year. * * ” 26 U.S.C.A. Int.Rev.Acts pages 788, 789.
It is assumed in this discussion, of course, that the corporation may legally buy its own shares. The taxpayer in question is a Delaware corporation and such purchase is permitted under the law of Delaware. Revised Code of Delaware, 1935, Chap. 65, Section 2051.
In December 1934 additional shares were retired by change in capital structure and amendment of certificate of incorporation. No additional legal question is presented by this fact.
G.O.M. 15055, XIY-2 O.B. 410 (1935). This memorandum on “adjusted declared value” discusses the situation where the corporation acquires its own capital stock, and holds, retires or otherwise disposes of it. It points out first that the mere purchase of outstanding stock by .the corporation does not affect its capital structure. Then with regard to the acquisition by a corporation of its stock, not for resale, but for retirement, it points out that there must be both the purchase of stock and its retirement to ■complete the transaction. The concluding words of the paragraph related to this case are: “The retirement completes the liquidation, but if it was an afterthought it cannot be related back to the purchase so as to warrant the conclusion that there was any distribution in liquidation within the meaning of subdivision (A).”
In stating the general rules to govern the determination of adjustment in this case it is stated: “(c), where the purchase and retirement of the shares of stock occur in one income-tax taxable year the adjustment authorized by subdivision (A) must be made in the capital stock return for the subsequent year ending June 30.” ■
It is to be noted that this specific rule relates to time when the adjustment must be claimed, not the time when the purchase of the shares was made.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_civproc2
|
49
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if less than two federal rules of civil procedure are cited. For ties, code the first rule cited.
Emil PERZINSKI, Plaintiff-Appellee, v. CHEVRON CHEMICAL COMPANY, Defendant-Appellant.
No. 73-1490.
United States Court of Appeals, Seventh Circuit.
Argued April 12, 1974.
Decided Sept. 19, 1974.
Rehearing Denied Nov. 15, 1974.
Brad way A. Liddle, Jr. and James F. Lorimer, Madison, Wis., for defendant-appellant.
Hiram D. Anderson, Jr., Stevens Point, Wis., for plaintiff-appellee.
Before CUMMINGS, PELL and STEVENS, Circuit Judges.
PELL, Circuit Judge.
Plaintiff-appellee Emil Perzinski brought this action to recover damages resulting from a reduction in yield of his 1968 potato crop. Perzinski claimed that the damage to his crop was caused by the application of Paraquat, a herbicide distributed by the defendant Chevron Chemical Company. The jury returned a verdict in favor of the plaintiff and Chevron appeals.
Although the issues raised by Chevron are multi-faceted, they are essentially three: (1) whether the district court erred in admitting certain evidence as admissions by Chevron; (2) whether the district court erred in finding Chevron negligent as a matter of law; and (3) whether the district court erred in failing to submit to the jury a special verdict question and an instruction concerning contributory negligence on Per-zinski’s part.
I
The district court admitted into evidence, over Chevron’s objection, testimony concerning three conversations between Chevron’s salesman, Robert Sosnovske, and Perzinski. During the first conversation, which allegedly occurred shortly after the application of Paraquat, Sosnovske told Perzinski that Chevron “would back up their recommendation of the product.” The second conversation, according to Perzinski, took place at what ordinarily would have been harvest time. Perzinski testified that, at that time Sosnovske told him, “Don’t worry. We’ll take care of you.” A third discussion occurred in Perzinski’s office at which time Sosnovske is said to have asked Perzinski what damages he was claiming and to have told Perzinski, in effect, to bill Chevron for them.
The district court admitted this evidence on the ground that these statements were admissions by Chevron and admissible under Wisconsin law.
Chevron relies on Wisconsin case law which, at the time of the trial, required that in order for the statement of an agent to be admissible as an admission by the principal, there had to be evidence indicating that the agent had authority to speak (as distinguished from authority to act) on the particular subject matter. Shoemaker v. Marc’s Big Boy, 51 Wis.2d 611, 617, 187 N.W.2d 815, 818 (1971); Rudzinski v. Warner Theatres, Inc., 16 Wis.2d 241, 245-246, 114 N.W.2d 466, 468-469 (1962). Chevron argues that the district court erred in finding that the evidence indicated that Sosnovske had authority to speak for Chevron on matters of liability.
This court, however, need not decide whether the district court ruled correctly on this issue under the Wisconsin case law cited. The Wisconsin Supreme Court adopted new rules of evidence while the instant case was on appeal. The new rules took effect on January 1, 1974 and apply “to actions and proceedings brought thereafter and also to actions and proceedings then pending.” In the Matter of Promulgation of Rules of Evidence for the State of Wisconsin, 59 Wis.2d Rl. (Emphasis added.) An action is still “pending,” according to the Wisconsin Supreme Court, until there is an “exhaustion of rights of appeal.” Larson v. Fetherston, 44 Wis.2d 712, 718, 172 N.W.2d 20, 23 (1969). Since the present case was on appeal, and, therefore, “pending,” when the new rules became effective, we deem it appropriate within the spirt of Rule 43(a) to apply these rules in determining whether the evidence in question was properly admitted.
The new rules provide, in pertinent part:
“(4) Statements which are not hearsay. A statement is not hearsay if:
# * * * *
“(b) Admission by party opponent. The statement is offered against a party and is:
* * «• * * *
“(4) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship . . . .” Wis. Rules of Evidence § 908.01(4) (b)4. (Emphasis added.)
The advisory committee’s notes specify that “[t]his provision is a change in Wisconsin law.” 59 Wis.2d R243. A party introducing the statement of an agent as the admission of the principal need not show that the agent had authority to speak for the principal; rather, the present rule only requires that the agent’s statement concern “a matter within the scope of his agency or employment.”
The evidence in the present case indicated that Sosnovske had been a salesman for Chevron for at least 13 years, at the time of the discussions with Per-zinski. Sosnovske had a degree in agronomy, and, as part of his job, he advised farmers on the use of various chemicals made by Chevron. Moreover, Sosnovske personally inspected Perzin-ski’s fields both before and after the application of Paraquat and was present during the actual application of the herbicide. Sosnovske also indicated that he filled out “product-complaint forms” when customers had complaints about the Chevron products and that he then sent the completed forms to Chevron.
Chevron, by the position it adopted in defending the present claim, is in effect stating that it is placing an experienced and knowledgeable salesman in the field to convince a prospective customer that a particular product would accomplish a particular result, yet repudiating from the protective corporate shield the statements of its agents without which the sale could not have been consummated. Here, the impact of the use of a product in the manner and for the very purpose for which it was sold could be disastrous, as the jury obviously found it to be. In our opinion, Sosnovske was acting within the scope of his authority in stating in effect that the company would stand in back of the product for the specialized purpose and use for which it was sold by him. We also note that other superior representatives of the company did participate in the selling process. The statements were, therefore, properly admitted as admissions of Chevron..
Chevron also contends that even if Sosnovske’s statements were admissions by the company, the statements were, nonetheless, privileged because they were made as part of settlement negotiations. The policy rationale which excludes an offer of settlement arises from the fact that the law favors settlements of controversies and if an offer of a dollar amount by way of compromise were to be taken as an admission of liability, voluntary efforts at settlement would be chilled. That, however, is not the situation we find in the language used by Sosnovske. Instead, he was in effect stating that the herbicide was sold to you on the basis that it would aid, not substantially destroy, your crop and the company is prepared to stand in back of the basis of the sale. The dollar amount was, of course, left open but that did not make the statements of the company’s position with regard to backing up its product an offer of compromise and settlement.
II
Chevron next argues that the district court erred in finding the defendant negligent as a matter of law.
The rule in the Seventh Circuit is that, in diversity cases, state law controls as to when a verdict can be directed. Etling v. Sander, 447 F.2d 593, 594 (7th Cir. 1971). In Wisconsin, “[a]n issue should be taken from the jury and a verdict directed against a party only when the evidence gives rise to no dispute or is so clear and convincing as reasonably to permit unbiased and impartial minds to come to but one conclusion.” Valiga v. National Food Co., 58 Wis.2d 232, 241, 206 N.W.2d 377, 382 (1973).
In the present case, there is no dispute that § 94.70(1) (b) of the Wisconsin Statutes forbids the distribution of any pesticide “about which claims are made, or directions for use are given, which differ in substance from the representations made in connection with its registration [with the Wisconsin Department of Agriculture].” A violation of this statute is negligence per se. Perry Creek Cranberry Corp. v. Hopkins Agr. Chem. Co., 29 Wis.2d 429, 438, 139 N.W.2d 96, 101 (1966).
Chevron also admits that the label which the company submitted to the Federal Department of Agriculture provided, in pertinent part:
“For best results, the application should be delayed to provide maximum weed and grass emergence but should be applied before 40 to 50 percent of the potatoes have emerged. An application made after 50 percent emergence may reduce yields.”
Having reviewed the entire record, we find that, viewing the evidence in the light most favorable to Chevron, the evidence was so clear and convincing that reasonable persons could reach but one conclusion, namely that the emergence of Perzinski’s potatoes in the affected fields was more than 50% at the time of the Paraquat application.
Moreover, the evidence indicated that a Chevron representative told Perzinski that Paraquat would only singe the potatoes a little and delay them about three days and that then the potatoes would be back to normal. There was no evidence that Chevron’s representative told Perzinski that there was a risk of reduced yield. The claim that the potatoes would only be “singed a little” was substantially different from the label warning that an application after 50% emergence might reduce yield. The district court, therefore, properly found that, as a matter of law, Chevron violated § 94.70(1) (b).
Chevron contends, however, that this determination is predicated on the representations in the federal label whereas § 94.70(1) (b) refers to representations in the label submitted to the state agency. (Perzinski was unable to introduce into evidence the state label and any accompanying data because the items had been destroyed by the state as a routine matter after three years.) We find Chevron’s argument unpersuasive.
The federal label represents the minimum information that could have been submitted to the Wisconsin agency and in its federal form was generally accepted by the state. Chevron admitted in oral argument that the company could not have supplied contrary information to the state and federal agencies. The label submitted to the state of Wisconsin, therefore, must have contained at least as much information regarding the hazards of applying Paraquat after 50% emergence as was contained in the federal label (i. e., Chevron could not tell the state that Paraquat would only singe potatoes if applied after 50% emergence when the company had already told the federal agency that, after 50% emergence, Paraquat might reduce yields). If Chevron submitted to Wisconsin a more detailed explanation of the problems of applying Paraquat after 50% emergence, this could only serve to increase, not decrease, the discrepancy between the label and the claims made to Perzinski.
Ill
The district court submitted to the jury three special verdict questions, one of which the court answered itself by finding Chevron negligent as a matter of law. Chevron argues that the district court erred in failing to give a special verdict question and instruction on the issue of whether Perzinski was con-tributorily negligent in failing to cultivate his fields.
A district court has considerable discretion as to the nature and scope of the issues to be submitted to the jury in the form of special verdict questions under Rule 49(a), Fed.R.Civ. P. Elston v. Morgan, 440 F.2d 47, 49 (7th Cir. 1971); Mickey v. Tremco Mfg. Co., 226 F.2d 956, 957 (7th Cir. 1955). Moreover, it is not error to refuse to submit a question or instruction where the issue is adequately covered by other questions or instructions. Gillam v. J. C. Penney Co., 341 F.2d 457, 461 (7th Cir. 1965); Mead v. Cochran, 184 F.2d 579, 482 (7th Cir. 1950).
In the present case, the issue of Per-zinski’s alleged contributory negligence, while not exhaustively so, was adequately covered by the district court in other instructions. The jury was told that “there may be more than one cause of a decreased crop yield.” The district court specifically instructed the jury that the award of damages was to be directly tied to the “natural consequence of the defendant’s negligence.” As the district judge noted, “Defendant was free to contend, and did contend, that some or all of the diminished yield was caused by factors other than the application of the Paraquat.”
We also note that there was no substantial dispute as to the dollar amount of the damages to the crop but that nevertheless the jury did, under the instructions, proceed to reduce in accordance with the comparative negligence rule followed in Wisconsin the amount of the verdict by a specific percentage. Since the dollar amount of the damages was not substantially disputed, and since the defenses of Chevron that their product was not the cause of the disaster would have eliminated any verdict, the percentage reduction in the verdict can only fairly be attributed to jury recognition that Perzinski’s failure to cultivate after the damage became obvious was, under the court's instructions on causation, a cause, even though minimal, of a decreased crop yield.
Chevron has prosecuted its appeal vigorously and the issues presented are close ones, perhaps needlessly so because the jury obviously found credibility to be with the plaintiff’s version of the case and the evidence was strong that the product in question applied pursuant to expert advice from qualified representatives of the manufacturer caused the crop failure in question. We are satisfied that justice was rendered and that a new trial is not indicated.
Accordingly, the judgment of the district court is
Affirmed.
. The plaintiff contends that any error in admitting these statements became moot when the district court found Chevron negligent as a matter of law. This contention is without merit. The statements in question were material to the issues of causation and damages as well as to the issue of negligence.
. Rule 43(a), Fed.R.Civ.P., provides inter alia, that evidence is admissible in a federal district court if it is admissible under federal statutes, or under the rules of evidence heretofore applied in federal courts in suits in equity, or under the rules of evidence in the courts of the state in which the federal court is held. The preference is for admissibility.
Question: What is the second most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_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.
CARLSON v. UNITED STATES (three cases).
Nos. 4732-4734.
United States Court of Appeals First Circuit.
Jan. 7, 1954.
Joseph J. Gottlieb, Boston, Mass. (Lawrence E. Cooke, Boston, Mass., with him on brief), for appellant.
Charles F. Choate, Asst. U. S. Atty., Boston, Mass. (Anthony Julian, U. S. Atty., and Edward D. Hassan, Asst. U. S. Atty., Boston, Mass., with him on brief), for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
MAGRUDER, Chief Judge.
Three appeals by John II. Carlson were consolidated by our order and heard together. Our disposition of the main appeal, No. 4732, renders the two other appeals moot, and they will be dismissed on that ground.
The appeal in No. 4732 is from a judgment of the district court on December 15, 1952, adjudging appellant Carlson guilty of the offense of criminal contempt and sentencing him to imprisonment for eighteen months.
This appeal was heard along with appeals in several companion cases, all of which have certain features in common. They are a by-product of the spectacular robbery perpetrated on January 17, 1950, at the Boston premises of Brink’s Inc., a commercial company engaged in guarding and transporting moneys. The criminals made off with over a million dollars in cash and securities, some of it federal funds. In anticipation of the early running out of the statute of limitations relating to the federal offense involved, the government made strenuous efforts to procure indictments by a federal grand jury. No indictments were forthcoming, and subsequently the grand jury was discharged.
As indicating the extremity to which the prosecution went in this connection, it caused a grand jury summons to be served on one Joseph J. (“Specs”) O’Keefe, a notorious gangster with a long criminal record, then serving a sentence in Pennsylvania for illegal possession of firearms, and a key suspect in the Brink’s robbery case. It appears that prior to this summons the United States Attorney had applied to a United States Commissioner for a warrant authorizing search of “Specs” O’Keefe’s home in Stoughton, Mass., upon the basis of an affidavit by an agent of the Federal Bureau of Investigation that a substantial sum of money which was part of the Brink's loot was believed to be seereted in the house. The warrant was issued, but the search on July 22, 1950, was unproductive. Before the grand jury, O’Keefe claimed his Fifth Amendment privilege against self-incrimination. Upon a subsequent presentment by the grand jury, the district court held that O’Keefe had lawfully claimed his privilege and declined to hold him in contempt of the authority of the court.
Along with “Specs” O’Keefe, numerous other persons, relatives of his, or presumed associates, including appellant Carlson, were summoned before the grand jury in connection with the Brink’s investigation. A number of them declined to answer various questions on the ground of their privilege against self-incrimination, and after separate proceedings before the district court upon presentment by the grand jury they have each been adjudged in criminal contempt by the court sitting without a jury. Their several appeals are now before us.
Before stating the particular details of the Carlson case, we think it will be helpful to make some general observations upon the offense of which Carlson stands convicted.
The Congress has not made it a separate and distinct offense for a witness before a grand jury to refuse to answer any question pertinent to the matter under inquiry. In that respect the present case is to be distinguished from the situation where a witness before a congressional committee refuses to answer a pertinent question, which is covered by 2 U.S.C.A. § 192:
“Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.”
2 U.S.C.A. § 192 makes it a misdemeanor not to answer a pertinent question at a congressional committee hearing. Of course, the statute cannot deprive a witness of his constitutional privilege against self-incrimination, and so if he properly invokes the privilege his refusal to answer is not an offense. Aiuppa v. United States, 6 Cir., 1952, 201 F.2d 287. The witness acts at his peril if he refuses to answer a question either on the ground that it is not pertinent or on the ground that an answer would tend to incriminate him. If it turns out that he was in error in either particular, he has irretrievably committed a misdemeanor under 2 U.S.C.A. § 192 regardless of his good faith. See United States v. Mur-dock, 1933, 290 U.S. 389, 397, 54 S.Ct. 223, 78 L.Ed. 381; Sinclair v. United States, 1929, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692; United States v. Costello, 2 Cir., 1952, 198 F.2d 200, certiorari denied, 1952, 344 U.S. 874, 73 S.Ct. 166; Aiuppa v. United States, 6 Cir., 1952, 201 F.2d 287. Where the witness before a congressional committee erroneously, but in good faith, invokes the privilege against self-incrimination, it has even been held that he has committed the offense described in 2 U.S.C.A. § 192 without the necessity of a ruling by the committee that the claim of privilege is rejected. See Bart v. United States, 1952, 91 U.S.App.D.C. 370, 203 F.2d 45, 48-49; Emspak v. United States, 1952, 91 U.S. App.D.C. 378, 203 F.2d 54, 57, certiorari granted, 74 S.Ct. 23.
In the absence of a comparable provision of law making it a misdemean- or for a witness before a federal grand jury to refuse to answer a pertinent question, the grand jury must depend upon the court to punish contumacious witnesses. The criminal contempt, if it be one, is contempt of the authority of the court.
In its substantive aspects, the power of a court of the United States to impose punishment for contempt of its authority is defined and limited by 18 U.S.C. § 401:
“A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—
“(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
“(2) Misbehavior of any of its officers in their official transactions;
“(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.”
Rule 42 of the Federal Rules of Criminal Procedure, 18 U.S.C., governs the procedural aspects of proceedings for criminal contempt in the United States district courts. Rule 42 is as follows:
“(a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.
“(b) Disposition Upon Notice and Hearing. A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.”
When 18 U.S.C. § 401(1) includes, as a criminal contempt of the court’s authority, misbehavior in the “presence” of the court, the word “presence” is used in a brooding, metaphorical sense broader than misbehavior in the “actual presence” of the judge as used in Rule 42(a). The grand jury is an arm of the court; and no doubt there may be instances of misbehavior in the grand jury room that constitute a completed offense of criminal contempt of court because committed in the “presence” of the court within that broader meaning of 18 U.S.C. § 401(1). Camarota v. United States, 3 Cir., 1940, 111 F.2d 243, 246; In re Presentment by Grand Jury of Ellison, D.C.Del.1942, 44 F.Supp. 375, 377, affirmed, 3 Cir., 1943, 133 F.2d 903, certiorari denied 1943, In re Ellison, 318 U. S. 791, 63 S.Ct. 995, 87 L.Ed. 1157. See O’Connell v. United States, 2 Cir., 1930, 40 F.2d 201, 203; Ex parte Savin, 1889, 131 U.S. 267, 277, 9 S.Ct. 699, 33 L.Ed 150.
Thus if a person interrupts the orderly course of a grand jury proceeding by making a physical attack upon the foreman, this would certainly be misbehavior in the presence of the court, punishable as a contempt under 18 U.S.C. § 401(1). Such misbehavior need not necessarily be of a violent character; for instance, tampering with a witness about to enter the grand jury room by bribing him to give perjurious testimony would be contumacious misconduct. See In re Presentment by Grand Jury of Ellison, supra, D.C.Del.1942, 44 F.Supp. 375. See, also, Ex parte Savin, 1889, 131 U.S. 267, 9 S.Ct. 699, 33 L.Ed. 150.
But if all the witness does before the grand jury is to decline to answer a question because of a good faith, but erroneous, claim of the privilege against self-incrimination, this is not “misbehavior” constituting a completed contempt of court. “Certainly the assertion of a constitutional right if made in good faith on advice of counsel could hardly be described as such misbehavior.” United States v. Greenberg, 3 Cir., 1951, 187 F. 2d 35, 38. Accord: Gendron v. Burnham, 1951, 146 Me. 387, 82 A.2d 773. Even when a witness is testifying at a trial, in the actual presence of the judge, it has never been suggested, so far as we are aware, that the invocation of the privilege against self-incrimination constitutes a completed contempt if the privilege is erroneously claimed. The claim of privilege calls upon the judge to make a ruling whether the privilege was available in the circumstances presented;' and if the judge thinks not, then he instructs the witness to answer. A fortiori, the same must be true where a witness before a grand jury erroneously but in good faith claims his privilege. The-witness is in the grand jury room without the present aid of counsel, and with all the legal uncertainties as to when the privilege is available, when it has been “waived”, etc., it would not be surprising if a witness, who knows of his Fifth Amendment privilege in a general way, makes an erroneous claim of privilege. The refusal to answer, in such a situation, is not a criminal contempt of the court’s authority. The grand jury, in that event, if it desires to pursue the matter further, must call on the assistance of the court to make a ruling whether the privilege is available and to instruct the witness to go back to the jury room and answer the question if the ruling is made that the privilege was improperly claimed.
Furthermore, in our opinion it is clearly to be deduced from Ex parte Hudgings, 1919, 249 U.S. 378. 39 S.Ct. 337, 63 L.Ed. 656, and In re Michael,. 1945, 326 U.S. 224, 66 S.Ct. 78, 90 L.Ed. 30, that even where a witness before a. grand jury declines to answer on account of the privilege against self-incrimination, claimed in bad faith, such conduct in and of itself does not constitute misbehavior in the presence of the court within the meaning of 18 U.S.C. § 401 (1). In Ex parte Hudgings a witness at a trial gave a series of “I can’t remember” answers which the judge thought, were obviously false; whereupon the judge committed the witness for a criminal contempt.' It was held that this, was not misbehavior in the presence of the court justifying summary punishment for contempt. An answer “I don’t remember”, when in fact the witness does remember, is nothing more than perjury, which is a separate offense in the prosecution of which the witness is entitled to the ordinary constitutional safeguards of indictment and trial by jury. Now a witness may seek to evade a direct and responsive answer to a question either by answering “I don’t know”', or “I don’t remember” when he does; know, or does remember, or by declining to answer the question on the pretended ground, known by him to be false, that a truthful answer would tend to incriminate him. The witness’ conduct is just as reprehensible, whichever stratagem of evasion he employs. If a witness, being-under oath, declines to answer a question' on the ground that a truthful answer would tend to incriminate him, when he-knows that this -is not so, he has committed perjury just as much as if he had responded falsely “I don’t remember.” In Re Michael a grand jury witness gave responsive answers, but his answers were-known by him to be false. It was held that under § 268 of the old Judicial Code, now found, without substantial change, in 18 U.S.C. § 401(1), the court could not summarily punish the witness for contempt where the misconduct consisted of nothing more than perjury. Further,. the Court in the Michael case emphasized, 326 U.S. at page 227, 66 S.Ct. at page 79, that Congress, though it has left to the court ample power to protect the administration of justice against immediate interruption of its business, has intended to safeguard constitutional procedures by limiting the contempt power to the least possible power adequate to the end proposed. “The exercise by federal courts of any broader contempt power than this would permit too great inroads on the procedural safeguards of the Bill of Rights, since contempts are summary in their nature, and leave determination of guilt to a judge rather than a jury. It is in this Constitutional setting that we must resolve the issues here raised.” We are not disposed to split hairs; the situation now under discussion is within the rationale of the Hudgings and Michael cases.
It is true enough that evasion of a direct and truthful answer may have an obvious tendency to impede and obstruct the ascertainment of the truth, and in most cases probably is so intended— whether the witness employs the stratagem of giving a direct but false answer, or of answering untruthfully that he doesn’t remember, or of declining to answer on the ground, known by him to be false, that a truthful answer would tend to incriminate him. But in any such case this conduct, discreditable though it may be, is not such “misbehavior” as brings into play the contempt power of the court. As the Court said in the Michael case, 326 U.S. at page 227, 66 S. Ct. at page 80: “All perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth. Therefore it cannot be denied that it tends to defeat the sole ultimate objective of a trial. It need not necessarily, however, obstruct or halt the judicial process. For the function of trial is to sift the truth from a mass of contradictory evidence, and to do so the fact-finding tribunal must hear both truthful and false witnesses.” And it cannot make any difference, in this connection, whether the witness makes one evasive answer or ten; in fact, depending on the circumstances, one evasive answer to a key question may be more obstructive to the ascertainment of the truth than ten evasive answers to peripheral questions.
If we are wrong in the conclusion stated in the two preceding paragraphs, this much certainly is so: Assuming that claiming the privilege in bad faith in the grand jury room may be deemed “misbehavior” in the presence of the court, the witness must be specifically put on notice that this is the criminal contempt charged, and the court cannot punish the witness for such contempt unless it finds, not only that the privilege was erroneously claimed, but also that it was claimed in bad faith.
From the foregoing it is apparent that when a witness is haled before the court on account of something that transpired in the grand jury room, the proceeding may or may not be one for criminal contempt. Since a refusal to answer a question on account of an erroneous claim of the privilege, at least where the claim is advanced in good faith, is not “misbehavior” constituting a completed criminal contempt of court, it follows that when the grand jury in that situation calls upon the assistance of the court for a ruling as to the availability of the privilege, the proceeding before the court is not at that stage a criminal contempt proceeding at all. Rule 42 of the Federal Rules of Criminal Procedure has no application, because that rule does no more than prescribe the procedure whereby the court may impose a punishment for a criminal contempt already committed. But though Rule 42 is not applicable, the constitutional requirement of due process of law makes it necessary for the judge to give the witness an adequate opportunity to be heard, and to introduce evidence, if the witness so desires, bearing on the issue whether, disregarding merely fanciful and far-fetched hypotheses, it is clearly evident from the implication of the question, in the setting in which it is asked, that a responsive answer might be dangerous because injurious disclosure could result. See Hoffman v. United States, 1951, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118. As stated by Taft, J., in Ex parte Irvine, C.C.S.D.Ohio 1896, 74 F. 954, 960, quoting Wharton on Criminal Evidence § 466, the judge in appraising the claim of privilege “must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.” Unless such opportunity is afforded, a ruling by the judge that the privilege is unavailable is nugatory, and an order to the witness to go back and answer the question is not a “lawful” order within the meaning of 18 U.S.C. § 401(3).
What ensues when a court is called upon, not to punish a completed contempt, but merely to rule on the availability of the privilege? If the court rules that the privilege was properly invoked, that is an end of the matter. If, on the other hand, the court rules (we assume correctly, and after the necessary hearing) that the privilege was not available under the circumstances, the court would then normally instruct the witness to go back to the grand jury and answer the question. If the witness then and there, in the face of the court, declines to do so, this is disobedience to a lawful order of the court, under 18 U.S. C. § 401(3); and since this disobedience occurs in the “actual presence” of the judge it may be punished summarily under Rule 42(a). If the witness, instead of disobeying the court’s order in the actual presence of the judge, proceeds back to the grand jury room and there again refuses to answer the question which the court directed him to answer, this is still disobedience of a lawful order of the court within the meaning of 18 U.S.C. § 401(3). But because such disobedience did not take place in the actual presence of the court, and thus could be made known to the court only by the taking of evidence, the court would have to conduct the proceeding in criminal contempt in accordance with Rule 42(b). See Ex parte Savin, 1889, 131 U.S. 267, 277, 9 S. Ct. 699, 33 L.Ed. 150.
It is important that the grand jury witness accurately be put on notice of the nature of the proceeding. If it is. nothing more than a request by the: grand jury for a ruling by the court on the availability of the privilege, then the witness should be informed that he is, not being cited to answer a charge of ai completed contempt of court, and he will! know that the only issue to which he shall have to address himself, at the hearing before the court, is whether he was entitled to decline to answer the particular questions on the ground of his-privilege against self-incrimination. The worst that could happen, if the ruling is against him, is that he would be given a second chance to go before the grand jury and answer the questions. If, on the other hand, he is being charged with misconduct in the jury room constituting misbehavior in the presence of the court, this charge must be prosecuted on notice, and under Rule 42(b) the notice “shall state the essential facts constituting the criminal contempt charged and describe it as such.” If the alleged misbehavior is a sneering, insolent, disrespectful attitude manifested by the witness in the jury room, then the requisite notice must set forth the essential' facts constituting such misbehavior se that the witness may frame his defense-,, and put in his evidence, directed to that issue. If the charge of misbehavior is that the witness deliberately obstructed the grand jury proceedings by flatly refusing to answer questions, without any pretended excuse, the notice should specifically so state. If the charge of criminal contempt is that the witness declined to answer the questions upon the pretended ground that the answers would tend to incriminate him, this claim of privilege being advanced in bad faith, then (assuming that such conduct might be deemed misbehavior in the presence of the court within the meaning of 18 U.S. C. § 401(1)) the required notice under Rule 42(b) would have to describe the alleged misbehavior in order that the witness, in preparing his defense to the charge, may direct his evidence to the is■sue of his good faith in claiming the privilege.
Incidentally, we note a possible ambiguity in the expression purging of ■contempt. If all the judge is undertaking to do is to rule on whether the privilege against self-incrimination was properly invoked as a ground for declining to answer a question in the grand jury room, then when the judge determines that the privilege was not properly invoked and instructs the witness to go back before the grand jury and answer the question, this is not giving the witness an opportunity to “purge” himself ■of contempt, for the simple reason that there has not yet been any completed ■criminal contempt. If, on the other hand, the judge is conducting a criminal contempt proceeding under Rule 42 on account of an alleged criminal contempt already committed in the jury room, the judge may, if he finds the defendant guilty of the offense charged, impose a punishment forthwith, or, in his discretion, he may withhold punishment at that point and give the defendant an opportunity to take some indicated action to “purge” himself of the completed offense and thus to stay the actual imposition of punishment.
In the light of the above preliminary discussion, we now come to the facts in the case at bar.
It appears that Carlson is known to be a bookie and gambler, with a criminal record and an unsavory reputation, and that he is reputed to have been an associate of “Specs” O’Keefe. He was summoned to appear before the grand jury investigating the Brink’s robbery. At the outset the Assistant U. S. Attorney asked Carlson to sign a so-called “Waiver of Immunity”, the document presented to him reciting in part that “I do hereby voluntarily waive immunity from prosecution for any offense of mine which shall be disclosed or indicated by me in so appearing and testifying or by any testimony which I may give or by any testimony or statements I may make in the presence of the said Grand Jurors.” After being permitted to consult with his attorney by telephone, Carlson declined to sign the waiver. This incident certainly served as a warning and reminder to Carlson of the pitfalls he was about to face because of the evident hope, if not expectation, of the U. S. Attorney that he would be able to elicit from Carlson incriminating answers having to do with the Brink’s case. In the ensuing examination Carlson invoked his privilege in refusing to answer a number of questions. Among them were questions relating to his present occupation, questions relating to whether he knew “Specs” O’Keefe and certain other named underworld characters, questions seeking to elicit from him certain information which he allegedly previously had given to agents of the FBI, questions relating to a certain trip to Philadelphia, it having been reported in the press that some of the Brink’s loot had been traced to Philadelphia. Maybe some of the questions which he refused to answer admitted of a truthful answer without any tendency to incriminate Carlson. But it is obvious that a vulnerable character like Carlson, having been presented with a waiver of immunity, and facing a vigorous examination in the grand jury room, without counsel at his side, might often have been in doubt as to what the U. S. Attorney was leading him into and might therefore have been apprehensive that his answers would aid somehow in building up a case of criminality against him either in connection with the Brink’s case or otherwise.
In the view we take it will not be necessary for us to take up the unanswered questions one by one and to rule whether the claim of privilege was properly invoked in each instance.
Three days after this appearance of Carlson before the grand jury, the grand jurors filed in court a so-called “presentment” in which it was stated that “John Henry Carlson appeared before the Grand Jury, and did wilfully, deliberately, and contumaciously, by evasion and irresponsive answers, obstruct the process of this Court, and did obstruct justice in failing and refusing to answer proper questions, in the Grand Jury proceedings”. Accompanying the presentment was the official transcript of the testimony given by Carlson before the grand jury.
Rule 42(b) makes no provision for a presentment by the grand jury as an accepted procedure for initiating -a charge of a criminal contempt already committed. In the Note of the Advisory Committee, commenting on Rule 7(a) of the Federal Rules of Criminal Procedure, it is stated that “Presentment is not included as an additional type of formal accusation, since presentments as a method of instituting prosecutions are obsolete, at least as concerns the Federal courts.” See Barron, Federal Practice and Procedure (1951) § 2424. Nevertheless if such a “presentment” by the grand jury “shall state the essential facts constituting the criminal contempt charged and describe it as such”, and if the court gives reasonable notice of a hearing to determine the guilt or innocence of the accused person of the criminal contempt as charged in the presentment, we have no doubt that Rule 42(b) would be deemed to have been substantially complied with. See United States v. Goldfarb, 2 Cir., 1948, 167 F.2d 735.
But in the present case the presentment did not charge in so many words that Carlson’s misbehavior constituted a “criminal contempt”. The “presentment”, instead of being a mode of initiating a proceeding for criminal contempt, may have been no more in this case than a way, and an entirely appropriate way, for the grand jury to invoke the assistance of the court in order to obtain a ruling on the availability of the claimed privilege against self-incrimination.
The district court set down a hearing on the presentment, but there was a manifest ambiguity as to the nature and scope of this hearing. The government introduced in evidence the transcript of Carlson’s testimony before the grand jury, and rested. At the outset counsel for appellant asked the court to-rule on whether the proceeding was one in civil or criminal contempt, and the-court answered somewhat evasively by saying, “the matter is properly before me-under the provisions of the Code which confers upon me certain responsibilities and certain rights.” The court’s further comments at that point seem to imply that in the court’s view the only issue before it was whether the privilege was properly claimed under the circumstances, so that if the court should decide this issue in the negative and order the witness to answer certain questions, “then-there isn’t any contempt until there is refusal to carry out the Court’s orders isn’t that right ?”. Later on the court, in. colloquy with counsel, indicated that it was called upon to rule whether there had been a completed criminal contempt in the grand jury room. Counsel for appellant objected to the making of such a ruling under the circumstances and continued to request the court to instruct Carlson “whether or not he is without privilege on each and every question and so order him to answer.”
At the conclusion of the hearing, the only finding made by the court, more or less following the language of the presentment, was the ultimate finding:
“And on the basis of all the testimony I have heard, I find that this defendant has contumaciously obstructed the process of this court and has been in contempt of its authority by evasive and irresponsive answers before the Grand Jury, and that he has refused intentionally and obdurately to assist the inquiry, and I therefore find him guilty of contempt of the authority of this court * *
'There was no finding that appellant committed a criminal contempt in the grand jury room by manifesting a sneering, insolent, or disrespectful attitude. Furthermore, no such misbehavior was charged in the presentment; nor was there anything in the transcript of the proceeding before the grand jury, which was all the government relied upon, which would have warranted such a finding had it been made.
Apparently the court was proceeding on the assumption that, if a witness in the grand jury room declined to answer a question on an erroneous claim of the privilege against self-incrimination, this, in itself, constituted misbehavior in the presence of the court, within the meaning of 18 U.S.C. § 401(1) — a completed and irretrievable criminal contempt of the authority of the court. As indicating this, the court remarked toward the close of the hearing that, “in view of the fact that this witness has been before the Grand Jury, and in the light of the decisions, if I find that the answers would hurt him, then of course he would be purged of contempt. But on the other hand, if I find this is a proper inquiry, then it seems to me it is my clear duty to adjudge him in contempt of court.” But for the reasons already explained at length in this opinion, such an assumption was a clear error of law. The erroneous claim of the privilege, certainly if made in good faith, and we believe whether or not made in good faith, cannot in itself be deemed misbehavior in the presence of the court, within the meaning of 18 U.S.C. § 401(1), authorizing the court summarily to impose punishment for a criminal contempt. Furthermore, the court has not even found that the claim of privilege here was made in bad faith.
We are obliged, therefore, to vacate the judgment of conviction (1) not only because appellant was not adequately apprised, in substantial compliance with Rule 42(b), that he was being called to answer a specific charge of criminal contempt, but also (2) because the evidence before the court was insufficient to support a finding that appellant had committed a criminal contempt of court in the course of his testimony before the grand jury.
In No. 4732, the judgment of the District Court is vacated, and the case is remanded to that Court with direction to dismiss the proceeding against John H. Carlson on the grand jury’s presentment, however that proceeding may properly be characterized.
In Nos. 4733 and 4734, the appeals are dismissed as moot.
. The other opinions in this group of cases, in the suggested order of reading, are in Hooley v. United States, 1 Cir., 209 F.2d 219; O'Keefe v. United States, 1 Cir., 209 F.2d 223; Maffie v. United States, 1 Cir., 209 F.2d 225; Daly v. United States, 1 Cir., 209 F.2d 232 and Hooley v. United States, 1 Cir., 209 F. 2d 234.
. Wo are not clear what would have been the legal effect of this document had Carlson signed it. A witness does not take into the grand jury room any immunity from criminal prosecution on account of what he may disclose in his tostimony; and therefore he has no immunity to waive. See United States v. Man-giaracina, D.C.W.D.Mo., 1950, 92 F.Supp. 96. If the document was meant to be an advance waiver of the privilege against self-incrimination, this intention was rather obscurely expressed,
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
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "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.
Thomas O. SPAMPINATO et al., Appellants, v. M. BREGER & CO., Inc., Appellee.
No. 64, Docket 23660.
United States Court of Appeals Second Circuit
Argued Oct. 7, 1955.
Decided Nov. 1, 1955.
See also, 124 F.Supp. 119.
Thomas O. Spampinato, pro se.
Jacob Leiman, Maspeth, N. Y., for ap-pellee.
Before HAND, MEDINA and LUM-BARD, Circuit Judges.
PER CURIAM.
This is an appeal from a judgment, dismissing the plaintiffs’ complaint for violation of Section 530(1), Title 50, U.S. C.A.Appendix. When the case came on for trial, the attorney for the plaintiffs waived a jury trial and stipulated the facts in substance as follows. The defendant corporation let to the plaintiffs— husband and wife — an apartment in Queens County, New York, at a monthly rental of $65. In January, 1953, the defendant began summary proceedings in the New York Municipal Court to evict the plaintiffs for failure to pay the rent for November and December, 1952, and January, 1953; but, since under the New York Emergency Rent Control the permissible rent was only $40, the plaintiffs not only answered the complaint, but filed a counterclaim for overpayment of rent. Notwithstanding this, the trial judge in the Municipal Court entered an order of eviction against the plaintiffs, and dismissed their counterclaim. This order the Appellate Term reversed on appeal, and gave judgment for the plaintiffs in the sum of $55 for overpayment of rent. On May 20, 1953, defendant began another proceeding in the same court to evict the plaintiffs, in which on June 3rd the defendant was successful, and they have in fact been evicted. The son of the plaintiffs was during all this time in the United States Navy, and had procured an allotment to his mother of $40 a month out of his pay. (The plaintiffs insist that this was later raised to over $90, and we shall so assume, though it does not appear in the stipulation.) These were the facts on which the complaint was dismissed.
Section 530(1) does indeed forbid any eviction of a lessee in the military service by the lessor except upon application to a court, or upon leave granted in an action, and 530(2) limits the judgment that may be entered in such an action, by putting the relief to be granted in the discretion of the court; but neither subsection in any way affects the jurisdiction of the court to make such “order as may be just.” Thus it follows that, when it appears that the lessee is in the “military service,” the court is not ousted of its jurisdiction, but the section merely gives the court entire jurisdiction to settle the dispute as justice may require. Section 536, moreover, imposes a duty upon any “dependent” of such a lessee to make such an “application to a court.” Assuming that an action for damages lies because of an eviction in violation of § 530, as the plaintiffs assert it does, it was barred by the order of the state court, as long as that order stood, because the order of a Municipal Court is res judicata under the law of New York. Prince v. Schlesinger, 116 App.Div. 500, 101 N.Y.S. 1031, affirmed 190 N.Y. 546, 83 N.E. 1130. The plaintiffs were obliged to secure the reversal or the cancellation of the order before they could treat the eviction as a wrong. So far as concerns the absence of their attorney’s authority to stipulate the facts in this action, § 520(3) applies only to cases where it is the defendant who is a person in the “military service.” Since in the case at bar the attorney was representing plaintiffs and not a defendant, the section did not apply, even though it be thought to apply to “dependents” at all.
Judgment affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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songer_casetyp1_7-3-1
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B
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - taxes, patents, copyright".
STIMPSON v. COMMISSIONER OF INTERNAL REVENUE.
No. 9219.
Circuit Court of Appeals, Eighth Circuit.
Jan. 25, 1932.
Rehearing Denied March 1, 1932.
William M. Fitch, of St. Louis, Mo. (George H. Moore, of St. Louis, Mo., on the brief), for petitioner.
Norman D. Keller, Sp. Asst, to Atty. Gen. (G. A. Youngquist, Asst. Atty. Gen., Sewall Key, Sp. Asst, to Atty. Gen., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Hartford Allen, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for respondent.
Before VAN VALKENBURGH, BOOTH, and GARDNER, Circuit Judges.
BOOTH, Circuit Judge.
This is a petition for review of an order of the Board of Tax Appeals entered September 39,1939, as amended by an order of February 12, 1931, redetermining deficiencies in the income taxes of petitioner for the calendar years 1922, 1923-, and 1924. The two latter years only are here involved.
The question presented is whether certain transactions by petitioner relative to'securities owned by her were sales of said securities resulting in taxable gain to petitioner.
The relevant statutes are section 213 (a) of the Revenue Act of 1921 (e. 136, 42 Stat. 237, 237), and section 213 (a) of the Revenue Act of 1924 (c. 234, 43 Stat. 253, 267, 2:6 USCA § 954 (a). The two sections are substantially identical; the former reading, so far as here material,, as follows:
“See. 213. That for the purposes of this title * * * the term 'gross income’—
“(a) Includes gains, profits, and income derived from * * * sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property. * * * ”
The facts were stipulated; the more important are substantially as follows: Mrs. Stimpson, the petitioner, during the time of the transactions involved, was an inhabitant of Missouri. On May 14, 1923, she was the owner of certain securities, having been the owner of some of them since August 1, • 1929, and of others since July 13, 1921. The securities were in the custody of the State National Bank of St. Louis, Mo. On May 14, 1923, she wrote the following letter:
“St. Louis, Missouri. May 14, 1923. “State National Bank, St. Louis, Missouri.
“Gentlemen: You are holding for my account in your safe keeping department certain bonds and other securities.
“I hereby authorize you to sell these bonds and securities on or between this date and May 39th and place proceeds of the same to my account, and I also hereby authorize you to purchase for my account United States Treasury Certificates of such issue as you may be able to buy, charging the amount to my cheeking account.
“Further, sometime during the month of ■ June I would like for you to purchase back the first mentioned bonds and securities for my account and pay for the same with the
STIMPSON v.- COMMISSIONER OF INTERNAL REVENUE 817
65 F.Í2A) 815
proceeds of the sale of the United States Treasury Certificates purchased for mo as authorized above.
“Yours truly,
“[Signed] Dorothy Baker Stimpson.
“P. S.—You are authorized to charge my account one-eighth of one per cent., covering the above transactions, as your commission.
“[Signed] Dorothy Baker Stimpson.”
The bank received the letter and acted as follows: It placed a valuation upon the securities, using the market value where available; and, where not available, used an approximate value based upon the par value, income produced, supposed solvency of maker, and other information. The total amount of such valuation was $104,000. The bank caused this amount to be entered as a credit on the books of the bank in favor of the petitioner, and caused the securities and their respective valuations to be entered on the books of the bank as assets of the bank amounting to $104,000. The bank then charged the account of petitioner with $104,-000, took out of its assets United States Treasury certificates then rated at $104,000, and placed them in the hands of an officer of the bank for petitioner. This same officer of the bank had theretofore had the custody of the securities owned by Mrs. Stimpson. Thereafter, and in June, 1923, the bank took back into its assets the Treasury certificates valued at $104,000 and placed a credit to the account of Mrs. Stimpson of $104,000. The bank then charged Mrs. Stimpson’s account with $104,000, and the said officer of the bank thereafter held the said securities for Mrs. Stimpson. The various entries and credits were entered as parts of the same transaction.
Mrs. Stimpson did not know at the time the details of the transactions except as they appeared on her monthly statements from the bank, and these did not show the source from which the credit items had been obtained nor to whom the debit items had been paid. Mrs. Stimpson paid the bank one-eighth of one per cent, of $104,000 for handling the transactions.
Transactions similar in substantial respects took place in May and June, 1924, Mrs. Stimpson having written to the bank in May, 1924, a letter similar to the letter of May 14, 1923.
The valuation placed on the securities in 1924 (some additional securities having been added) was $138,000. June 2,1924, the bank 55 F.(2d)—52
sent to Mrs. Stimpson, who was then in Paris, Prance, the following letter :
“State National Bank,
“St. Louis, Mo. June 2nd, 1924. “Mrs. Dorothy Baker Stimpson, 58 Rue de Vaugirard, Paris, Prance.
“Dear Mrs. Stimpson: We enclose statement of your account to the close of business May 31st, 1924, together with cancelled checks and memorandums showing the various credits. The withdrawal of $5,100.00' on the 31st ult. was made by us and the amount invested in U. S. Treasury certificates. We have sold the certificates again and your account has been credited $5,100.00 to cover.
“We charge your account $1,000'.00' and send you, herewith, our two drafts on the American Exchange National Bank of New York for $500.00 each payable to your order.
“Wo also handled, in the same manner as last year, your securities left with us for safekeeping. We disposed of the securities, with the exception of the Liberty Bonds, at the par value of $138,000.00, investing that amount in U. S. Securities. We have repurchased the U. S. securities and have used the amount to buy back your securities so that same stand just as they were before. In your letter of May 14, 1923, you authorized us to charge your account Vs% of 1% as our commission covering this transaction. We have, therefore, charged your account $172.-50.
“Yours very truly,
“[Signed] E. W. Kleinschmidt,
“Assistant Cashier.”
Mrs. Stimpson had no information as to the details of the transactions of 1924 except as disclosed by the foregoing letter.
The United States Commissioner of Internal Revenue later examined these various transactions; concluded that they involved sales of securities; ascertained the original eost to Mrs. Stimpson of the securities; computed the gains made by reason of said sales; included said gains in the income account of Mrs. Stimpson for the years mentioned; and determined a deficiency of income taxes of' $1,638.05 for the year 1923 and of $4,111.61 for the year 1924. The Board of Tax Appeals affirmed the Commissioner by its decision of May 23,1930 (19 B. T. A. 1059), as amended by its order of February 12,1931. The present petition for review followed.
The question presented for consideration of this court is whether the above-outlined transactions of 1923 and 1924 constituted valid and effective sales of the petitioner’s securities which will support the income tax.
From the elaborate and interesting brief for the petitioner, we gather that the main contentions of petitioner are:
(1) That there was no sale because (a) the bank had no power to make a sale to itself; (b) the bank was a trustee and could not properly earry out the transactions as actually performed; (c) a consideration for the sale was absent.
(2) It is further contended: “The direetion to repurchase her said securities given by the petitioner shows clearly that she did not intend to pass absolute and final title to her securities under her direction to sell. If the Bank had sold on the open market at the marbetable value of her securities, and had bought, at the market value, treasury certificates after the direction of petitioner to sell her securities and purchase certificates, and if the Bank had sold the certificates' on the market and repurchased the identical securities which petitioner held at the time of giving the direction to sell, even then a sale would not have been accomplished, for it is apparent that the petitioner did not intend to part absolutely with title to her seeurities.”
We take up the contentions in reverse order. ^ It is to be noted that the language of the instructions to the bank was to sell the securities owned by petitioner and purchase United States Treasury certificates, and after June, to “purchase back the first mentioned bonds and securities” and pay for the same with the proceeds of the sede of the Treasury certificates. The language is plain.and free from ambiguity. It calls for a sale of seeurities and a purchase of certificates. There is nothing in the language used to suggest an accommodation loan of certificates, as contended by counsel for petitioner. The bank was to be paid a commission for carrying out the transactions. This also indicated the intention to consummate a sale.
One of two inferences would seem to follow: Either that a sale of the securities was' intended; or that some deception was intended and the form of a sale used to cover it up. We prefer to draw the first inference.
Considerable discussion is indulged in by both parties as to the purpose of the transactions involved. This purpose is not direetly disclosed by the record. However, the Board of Tax Appeals was asked to eonsider section 12756 of the Revised Statutes of Missouri, 1919, which reads as follows: “Sec. 12756. Property held June 1st liable for taxes. — Every person Owning or holding proper^y orL th® ffrsi day of June, including all siich property purchased on that day, shall be liable for taxes thereon for the ensuing year.”
We, of course, take judicial notice that United States Treasury Certificates were not taxable by the state of Missouri. •
What weight was given to the statute ^ bearing upon the question of intent of petitioner in entering into the transactions in question we do not know. It is earnestly contended by petitioner that the Board of Tax Appeals ought not to have considered the statute at all, and that this court should not consider it. It need hardly be reiterated that federal courts take judicial notice of the statutes of the several states, and, if such statutes have a bearing upon the question of intent of parties in their various transactions, they may be properly considered, notwithstanding they are not embodied in a stipulated statement of facts. Consideration of this statute in connection with the facts disclosed in the record does not raise any ugly imputation against petitioner as her counsel suggests, Actual sale of property prior to the incidence of a tax thereon is not illegal, even though the sale is made in order to avoid liability. for the tax. Bullen v. Wisconsin, 240 U. S. 625) 36 ct 473, 60 L Ed. 830; United states v. Isham, 17 Wall. 496, 21 L. Ed. 728; Ford v. Nauts (D. C.) 25 F.(2d) 1015; Iowa Bridge Co. Commissioner, 39 F.(2d) 777, 781 )C. C. A 8) Wiggin v. Commissioner (C. C A.) 46 F.(2d) 743, 745.
The othercontention of petitioner, that transaeti°ns in question could not have keen sai0s i>ecanse the necessary elements of a sa^e were lacking, will be briefly considered,
It is contended that the bank, being an agent of petitioner, was not competent to be a purchaser at the sales;- and that such sales were not authorized by the letters of the petitioner to the bank. A sale by an agent, to himself of the property of his principal is not absolutely void, but voidable at the election of the principal. 2 C. J. 702, § 359; Marsh v. Whitmore, 21 Wall. 178, 22 L. Ed. 482; Hoyt v. Latham, 143 U. S. 553, 12 S. Ct. 568, 36 L. Ed. 259; Hammond v. Hopkins, 143 U. S. 224, 12 S Ct. 418, 36 L.Ed. 134; note 80 Am. St. Rep 555, 563.
While it is true that petitioner did not know all the details of the transactions until the fall of 1926, yet since that time, so far as the record shows, there has been no repudiation of them by the petitioner.
Furthermore, it is plainly inferable from the record that petitioner intended that the bant should itself, he the purchaser of her securities. The letter of May 14, 1923, directed the bank to buy hack in June the very same securities which it had sold in May. The obvious way, if not the only way, to accomplish this, was for the bank to be the purchaser in May and hold until Juno. Especially is this true since some of the securities had no quoted market value.
The contention that there was no valid sale because no price or consideration for the sale was fixed by the petitioner is also, in our opinion, devoid of merit.
It is to be noted here, again, that there has been no repudiation of the transactions by petitioner. She knew the price at which the securities were sold in 1923, shortly after the sale was made, and the price at which the securities were sold in .1934, shortly after that sale was made. The record shows no protest as to either.
The fixing of the selling price by the bank at a figure somewhat lower than the approximate market value, of which eounsel for petitioner apparently complains was plainly to petitioner’s advantage rather than to her disadvantage.
In conclusion we may say that we assume that petitioner’s purpose in carrying out the transactions involved was lawful. We give to the transactions the construction which we think the facts and circumstances demand, and which we think the parties themselves placed upon them at the time.
That petitioner’s federal income taxes have been increased by reason of sueh transactions was a risk which petitioner ran when she determined the form and nature of the transactions.
■ We think the order of the Board of Tax Appeals was right, and it is affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - taxes, patents, copyright"?
A. state or local tax
B. federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates)
C. federal tax - business income tax (includes corporate and parnership)
D. federal tax - excess profits
E. federal estate and gift tax
F. federal tax - other
G. patents
H. copyrights
I. trademarks
J. trade secrets, personal intellectual property
Answer:
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sc_authoritydecision
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D
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
GOODING v. UNITED STATES
No. 72-6902.
Argued February 25, 1974
Decided April 29, 1974
Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Blackmun, and Powell, JJ., joined. Douglas, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 459. Marshall, J., filed a dissenting opinion, in which Douglas and Brennan, JJ., joined, post, p. 461.
Herbert A. Rosenthal, by appointment of the Court, 414 U. S. 998, argued the cause and filed briefs for petitioner.
Deputy Solicitor General Frey argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Petersen, Edward R. Korman, and Jerome M. Feit.
Mr. Justice Rehnquist
delivered the opinion of 1he Court.
Petitioner in this case presents a claim that evidence offered against him at his trial should have been suppressed because it was seized at nighttime in violation of governing statutory provisions. The search which led to the seizure was conducted by officers of the District of Columbia Metropolitan Police Department at approximately 9:30 p. m. within the District of Columbia. Armed.with a search warrant, the officers entered petitioner’s apartmertt for the purpose of discovering violations of a federal narcotics statute, and seized a substantial amount of contraband narcotics. The parties urge upon us differing theories concerning which federal or District of Columbia statute bears on the legality of this search, and we must therefore interpret and reconcile several recent congressional enactments dealing with nighttime searches which seem to embody somewhat inconsistent views.
The Court of Appeals agreed with the District Court’s description of this congeries of statutes as a “ ‘bramble-bush of uncertainties and contradictions,’ ” and a mere summary of the statutes attests to the accuracy of that observation:
District of Columbia Statutes: The older of the two, conceivably relevant District of Columbia statutes, D-. C. Code § 33-414 (1973), was enacted in 1956 and authorizes search warrants for violations of the District of Columbia narcotics laws. This section does not limit the time during which searches may be made,- stating plainly that “[t]he judge or commissioner shall insert a direction in the- warrant that it may be served, at any time in the day or- night.” This liberal time provision is in direct contrast to the more restrictive provisions of the second District of Columbia statute to be considered, D. C. Code § 23-521 (f)(5), which specifically requires that search-warrants be served in the daytime unless certain conditions set forth in § 23-522 (c)(1) are met. These conditions essentially require a showing of special need to search at night, and concededly have not been satisfied in this case.
Federal Statutes and Rules: The general provision governing federal search warrants is found in Fed. Rule Grim. Proc. 41. At the time the search in this case took place, Rule 41 (c) provided that warrants must be served in the daytime except where “the affidavits are positive that the property is on the person or in the place to be searched.” In such event the warrant could direct “that it be served at any time.” This provision was incorporated in the Rules in 1948 as a replacement for language previously contained in the Espionage Act of 1917. A second federal statute relating only to searches for “controlled substances” is found in 21 U. S. C. §879 (a), which was enacted in 1970. That section 'provides that a' warrant may-.be served “at any time of the day or night” so long as the issuing authority “is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time.”'This provision in turn is the successor to a provision in 18 U. S. C. § 1405 (1964 ed.), enacted in 1956 to relax the “positivity” test of Rule 41 in cases involving certain narcotic drugs. ■ Congress had passed this statute in response to the complaints of law' enforcement officers that the positivity requirement gave commercial narcotics dealers a definite’ ¿d vantage over federal agents. Rule 41 is therefore not applicable to searches governed by the more specific narcotic search statutes.
Tbie facts of this case must be understood in the context of thes'e statutes. On February 11, 1971, an Assistant United States Attorney applied to a United States Magistrate sitting in the District of Columbia for a warrant authorizing a search of petitioner’s apartment for evidence of illegal narcotics. The application included the brief notation: “Violation: U. S. Cr; Title 26. Sections: 4704a.” In connection with the application., an officer of the Metropolitan Police Department vice squad appeared before the Magistrate and swore that he had reason to believe petitioner was concealing property held in violation of 'that same cocte provision. The officer supplemented his personal testimony with a written affidavit, outlining the basis for the application in more detail and alleging specifically that “illegal drugs are sold and possessed in violation of the United States Code, Title 26,. Section 4704a.” The affidavit concluded with the language: “I am positive that Lonnie Gooding is secreting narcotics inside his apartment at 1419 Chapin Street NW in violation of the US Code.”
The Magistrate then issued a warrant directing the Chief of Police or “any member of MPDC” to search petitioner’s apartment. The warrant specifically noted that facts had been set forth in ah affidavit alleging a violation of 26 U. S. C. § 4704 (a) (1964 ed.) and that those facts established probable cause to make the search. The warrant also stated that the search could be made “at any time in the day or night.” • This phrase was accompanied by a footnote reference to Fed. Rule Crim. Proc. 41 (c), presumably because-the police officer had asserted he was “positive” the drugs were in petitioner’s apartment. One of the briefs filed in this case suggests that the warrant form was preprinted and contemplated application of Rule 41 standards.
The search warrant was executed on February 12, 1971, at 9:30 p. m. The officers engaged in the search were all members- of the District of Columbia Metropolitan Police Department, and the search uncovered a substantial quantity of contraband narcotic materials. They were seized and formed the basis for charging petitioner with violations of 26 U. S. C. § 4704 (a) (1964 ed.) and 21 U. S. C. § 174 (1964 ed.). Following his indictment in the United States District Court for the District of Columbia on April 6, 1971, petitioner filed a.motion to suppress the evidence discovered in the February 12 search.
. Several grounds were asserted in support of the motion, particularly that “[t]he search warrant was executed at night but the application for the warrant did not comply with the D. C. Code provisions for nighttime search warrants... Although no provisions of the D. C. Code were' explicitly referred to, petitioner’s argument apparently was that Title 23 of the D. C. Code, requiring that a special showing of need be made to justify a search at night, governed this search, and that its requirements had not been met. The District Court found this reasoning persuasive and granted the motion to suppress. Rejecting the Government’s argument that the warrant was not issued under Title 23 but rather under 21 U. S. C. § 879 (a), the court stated:
“Whatever be the standards generally for issuance of a nighttime search warrant in federal narcotics cases in other parts of the country, however, the Court finds that the existence of 21 U. S. C. § 879 (a) does not remove such cases from the explicit requirements for' search warrants in the District of Columbia under the newly enacted Title 23, D. C. Code.”
Having decided that District of Columbia law applied, the District Court admitted to some uncertainty about the status of D. C. Code § 33-414, the provision dealing specifically with violations of local drug laws. The court noted with some puzzlement that no mention of this provision was found in the legislative history of Title 23, and that some language in the legislative history suggested that the provisión had simply been overlooked. Nevertheless, the court determined that
“[p] ending prompt review of this determination or congressional action, and-pending interpretation of 33 D. C. Code § 414 (h) in light of the new Title 23 provisions, search warrants which are to be-executed in the nighttime should comply in all respects with 23 D. C. Code § 523 (b).”
Concededly the warrant issued in this case did not comply with the requirements of Title 23.
The Court of Appeals for the District of Columbia Circuit reversed the District Court, although none of the three judges who composed the panel completely agreed with any other ón the proper rationale. All three agreed,'however, that 21 U. S. C. § 879 (a), rather than any provision of the District of Columbia Code, was the provision which determined the legality of this search. All three likewise agreed that the affidavit submitted by the District of Columbia police officer satisfied the requirements of that section. Judge Wilkey and Judge Fahy found that no greater showing for a nighttime search was required by § 879 (a) than was required by its predecessor statute governing federal narcotics searches, 18 U. S. C. 1:1405 (1964 ed.), and that the affidavit need establish only probable cause to believe that the-property would be on the premises at the time of the search Judge Robinson believed that § 879 (a) did require an additional showing for a nighttime search, but concluded that such a showing had been made in this case: •
Petitioner urges that we reverse the Court of Appeals on either or both of two alternative grounds. First, petitioner repeats his assertion, sustained by the District Court, that Title 23 of the D. C. Code is the statute applicable, to the search in this case and that, as the Government has conceded, the requirements of that title have not been satisfied. Second, petitioner argues that, if 21 U. S. C. § 879 (a) is considered to be the applicable provision, a special showing for nighttime searches must be made. We agree with the Court of Appeals that 21 U. S. C. § 879 (a) is the statute applicable to this case, and that its provisions have been satisfied-here.
I
The unique situation of the District of Columbia, for.which Congress legislates both specially. and as a part of the Nation, gives rise to the principal difficulties in this case. For we deal here not with statutory schemes enacted by independent legislative bodies, but with possibly overlapping schemes enacted by a single body. Despite the potential overlap, however, we think that the operative facts surrounding this search. strongly indicate that the standards for.issuance of a warrant should be governed by the nationwide federal legislation enacted by Congress — that is, 21 U. S. C. § 879 (a) — rather than by the local D. C. laws. To begin with, an Assistant United States Attorney, who had discretion to proceed either under federal or under local law, filed the application for the search warrant alleging a violation of the United States Code. Application was made to a United States Magistrate, located in the United States District Court building, and neither the application nor the supporting affidavits contained any mention of the local narcotics laws. After the materials were seized, petitioner was indicted for violations of federal law.
Petitioner contends, however, that Title 23 of the D. C. Code should apply to this case because the executing officers, as well as the officer swearing to the affidavit presented to the Magistrate, were not federal officers but officers of the District of Columbia Metropolitan Police Department. He argues that the provisions of 21 U. S. C. § 8.79 (a) were intended to apply solely to agents of the Bureau of Narcotics and'Dangerous Drugs, none of whom were involved here, whereas Title 23 of the D. C. Code was intended to provide comprehensive regulation of District of Columbia police officers investigating both local and' federal offenses. Petitioner reinforces his argument by noting that the former federal statute regulating drug searches specifically provided that “a search warrant may be directed to any officer of the Metropolitan Police of the District of Columbia authorized to enforce or assist in enforcing a violation of any of such provisions,” while no such section appears in' 21 U. S. ’ C. § 879. Therefore, says petitioner, the District of Columbia police’ were no longer to be considered federal agents for the purpose of enforcing federal drug laws.
Although petitioner’s arguments cannot be dismissed lightly, we find them ultimately unpersuasive.’. Coricededly there are hints in the statutory framework and legislative history of the Controlled Substances Act, 84 Stat. 1242, that indicate the policing function under those provisions would-be the primary responsibility of the Bureau of Narcotics and Dangerous Drugs. But this focus on the Bureau’s role seems entirely natural in view of one of the Act’s stated purposes to “collect the diverse drug control and enforcement laws under one piece of legislation to facilitate law enforcement; drug research, educational and related control facilities.” In providing a comprehensive federal scheme for the control of drug abuse, Congress could be expected to pay special attention to the federé! agency set up to enforce the laws. But this attention does not mean that Congress at the same time wished to dispense with the aid of other enforcement personnel who had previously given assistance.
. The failure of Congress to include a special provision authorizing District of Columbia police officers to obtain search warrants for investigating federal offenses cannot be taken as a deliberate exclusion in view of.the overall statutory framework. The provision included in the previous federal statute may well have seemed unnecessary, both in light of the history of cooperation between the District of Columbia police.and federal officers and in view of the provisions of D. C. Code § 4r-138 providing that “[a]ny warrant for search or arrest, issued by any magistrate of- the District, may be executed in any part of the District by any member of the police force....” Thus, both custom and statute already assured the availability of District of Columbia police. Furthermore, the legislative history relating to § 879 (a) stresses the need for stronger enforcement of the federal narcotics laws, a. goal hardly advanced by reducing the forces available to.execute those laws. In fact, the provision which is now § 879 (b), permitting “no-knock” searches under certain conditions, was one of the most controversial sections of the entire bill, and was defended primarily by the pressing need for added enforcement weapons to combat the increased drug traffic.
Finally, the interpretation urged by petitioner would leave District of Columbia officers able to execute general federal search warrants under amended Fed. 'Rule Crim. Proc. 41, but would deny them that authority under the federal drug search statute.'Rule 41 now pro: vides that “a federal law enforcement officer” — defined in the Rule to include “any category of officers authorized by the Attorney General to request the issuance of a search warrant” — may make applications under the Rule. The Attorney General has since listed the Metropolitan Police Department ahiong those agencies which are so authorized. If petitioner’s contention were accepted, it would seemingly mean that the general search warrant statute applicable to the District of Columbia would govern District of Columbia police officers investigating federal drug cases, but would not govern them when investigating other federal crimes.. This result would obtain despite the fact that District of Columbia police officers historically played a prominent role in the enforcement of federal drug laws under 18 U. S. C. § 1405 (1964 ed.).
There is little indication that Title 23 of the D. C. Code was intended to serve the sweeping purpose which petitioner attributes to it. The search warrant provisions upon which petitioner relies were part of the Court Reform and Criminal Procedure Act, which substantially reorganized the District of Columbia court system, providing for a new local court of general jurisdiction and relieving the United States District Court for the District of Columbia of much of its local burden. Prior to that time all local felonies had been tried in the United States District Court, and the Federal Rules of Criminal Procedure by their terms had applied. The creation of the new Superior Court created the need for a new set of procedural rules, and, though some important changes were made, the new rules quite closely tracked the Federal Rules. It does not seem unreasonable, therefore, to suggest that the general provision relating to search warrants, found in D. C.^Code § 23-521 et seq. and then incorporated in similar form into the rules promulgated Feb. 1, 1971, for the new Superior Court, was intended to be a counterpart to Fed. Rule Crim. Proc. 41. The Federal Rule; as discussed infra, did - not apply to narcotics cases in the federal courts since more specific provisions, first those of 18 U. S. C. § 1405 (1964 ed.) and then, those of 21 U. S. C. § 879 (a), controlled.
This conclusion is reinforced by the fact that Federal Rule 41 has been subsequently modified to more closely resemble the District of Columbia statute and rule. The new Federal Rule, though less specific than the local rule, provides that a search warrant must be served in the daytime, “unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime,’.’ and abandons the old, cumbersome positivity standard. The concern for individual privacy revealed in the provisions of the District of Columbia search statute may thus be found in the new Federal Jtule as well, but Congress’ as it had in the earlier version of the Rule, nevertheless showed its clear intention to leave intact other special search warrant provisions, including, of course, the provisions relating to searches for controlled substances. In those limited cases Congress has considered the need for privacy to be counterbalanced by the public need for more effective law enforcement. We do not believe that Congress, by enacting a general search warrant provision for the District of Columbia, has struck a different balance in federal drug cases simply because District of Columbia police officers are involved.
. We therefore conclude, as did all the judges of the Court of Appeals, that the statute applicable to this case is 21 U. S. C. § 879 (a). Our remaining task is to determine whether the requirements of that section have been met.
IX
.“A search warrant relating to offenses involving controlled substances may be served at any time of the day. or night if the judge or United States magistrate issuing, the warrant is satisfied that there is probable cause' to believe that grounds exist for the warrant and for its service at such time.” 21 U. S. C. § 879 (a).
Only the last seven words of the statute are really in controversy. here.. Petitioner contends that this language, not found in the predecessor statute, 18 U. S. C. § 1405 (1964 ed.), was intended to require some special showing of need for searches conducted at night rather than during the day. His contention was adopted, at least in part, by Judge Robinson in the Court of Appeals. The Government, on the other hand, contends that it must show only probable 'cause to believe that the sought-after property will be on the premises at the.time of the search, and that if there is probable cause to believe the property will' be on the premises at night, such a showing sufficiently meets the requirement imposed by the last seven words of § 879 (a).
The language of the statute by itself is not crystal clear on this issue. Petitioner insists- that the last phrase requires with unmistakable clarity a separate finding of probable cause to justify a nighttime search. Thus, according to petitioner, the issuing magistrate would have to satisfy himself that there was not only probable cause for the search, but also probable cause for believing that the search should be conducted at nighttime rather than during the daytime. While this is a possible meaning, it is by no means the only possible meaning attributable to the words.
Petitioner’s interpretation really assumes that the statute reads: “There is probable cause to believe that grounds exist for the warrant and, if served at night, for its service at such time.” But the statute does not include the italicizéd four words; it makes no distinction whatever between day and night, and literally read would apparently require that a special showing be made for a daytime search as well. The idea that a particularized showing must be made for searches in the daytime is completely novel and lacks even a single counterpart in other search statutes enacted by Congress.
Petitioner suggests that since Congress was concerned about the greater intrusion resulting from nighttime searches, it would be logical to apply the language, “probable’ cause... for its service at such time,” only to nighttime searches. But even this interpretation, which is by no means a literal reading of the language, is not wholly convincing. -The'traditional limitation placed on nighttime searches, as evident from the earlier language of Rule 41, is to require, not that there be probable' caüse for searching at night, but that the affiant be positive that the property is in fact located on the property to be searched- Thus Congress’ very choice of the words “probable cause” would indicate that the earlier limitation of “positivity” was not to apply, while offering no other immediately ascertainable standard fon what should constitute “probable cause” for executing a search warrant during the night.
This roundabout way of limiting nighttime searches, if that were in fact the statute’s intent, would sharply contrast with the manner in which Congress has required special showings for nighttime searches in other statutes. For example, Title 23 of the D. C. Code, discussed supra, specifies that the warrant “be executed during the hours of daylight” (emphasis added) unless certain itemized conditions are met. Federal Rule Crim. Proc. 41, as amended in 1972, states: “The warrant shall be served in the daytime unless the issuing authority, • by appropriate provision in the warrant, and for reasonable cause ■ shown, authorizes its execution at times other than daytime.” (Emphasis added.) The fact that Congress, when it has intended to require such special showings for nighttime searches, has done so in language largely free from ambiguity militates against petitioner’s assertion that the language, of § 879 (a) on its face supports his position. ■
The legislative history lends no support to petitioner’s interpretation, but in fact cuts the other way.- ■ Both the House and the Senate Committee Reports on the bill incorporated a summary prepared by the Department. of Justice, where much of the -bill’s drafting had taken places which stated:
“Section 702 (a) [now § 879 (a)] incorporates.18 U. S. C. [§] 1405 and authorizes service of a. search warrant at any time of the day or night if probable cause has been established to the satisfaction of the judge or U. S. magistrate issuing the warrant.”
As previously noted, § 1405 provided that a search warrant could be served at any time of the day or night so long as the issuing officer was “satisfied that there is probable cause to believe that the grounds for the-application exist....” Case law had uniformly interpreted the language to mean that probable cause for the warrant itself was all that was necessary for a nighttime search. The officers or agents simply had to establish probable cause for believing that the sought-after property would be found in the place to be searched.
There is no ■ suggestion in any of the hearings or debates before Congress that a change from the prior law in this área was intended. The provision itself went unmentioned in the debates and hearings on the bill, a surprising omission if the bill effected "the cutback petitioner says it did. Of like import is the fact that in the long and heated discussions over § 702 (b), the so-called, “no-knock” provision of the bill, no defender of the bill saw fit to argue that any greater intrusion caused by the no-knock provision would be partially offset by the greater difficulty in obtaining warrants executable at night. While congressional silence as to a particular provision of a bill during debates which give extensive consideration to neighboring provisions is not easy to interpret, it would be unusual for such a significant change as that proposed by petitioner to have entirely escaped notice.
Finally, it is important to note that.the Department of Justice itself submitted this bill to Congress for enactment, including § 879 (a) in its present form. Since the hearings and debates stress that a major purpose of the bill was to supply more effective enforcement tools to combat the increasing use of narcotic drugs, it seems totally illogical to suggest that the Department of Justice would submit a bill making it substantially more difficult to control the traffic in hard drugs. Petitioner suggests that this surrender was necessary to convince Congress to bring additional drugs within the Controlled Substances Act, but that theory rests entirely on speculation. There is absolutely no indication in the legislative history that any price had to be paid, for what was thought to be a much-desired reorganization and expansion of the drug laws, much less the substantial price that petitioner argues had to be paid here.
We therefore conclude that 21 U. S. C. § 879 (a) requires no special showing for a nighttime search, other than a showing that the contraband is likely to be on the property or person to be searched at that time. We believe that the showing was met in this case. The affidavit submitted by the District of Columbia police officer suggested that there was a continuing traffic of drugs from petitioner’s apartment, and a prior purchase through an informer had confirmed that drugs were available. This was sufficient to satisfy 21 U. S. C. § 879 (a). The judgment of the Court of Appeals for the District of Columbia Circuit is
Affirmed.
The Government -contends that even though we, were to determine that the applicable statutory provision was violated in this case, the evidence should nonetheless not be suppressed. Since we conclude that the seizure was consistent with the governing statute, we have no occasion to reach this alternative argument.
See 155 U. S. App. D. C. 259, 261, 477 F. 2d 428, 430 (1973), quoting from 328 F. Supp. 1005, 1008 (DC 1971).
“§ 33-414. Search warrants' — Requirements—Form—Contents— Return — Penalty for interfering with service.
“(a) A search warrant may be issued by any judge of the Superior Court of the District of Columbia or by a United States commissioner for the District of Columbia when any narcotic drugs are manufactured, possessed, controlled, sold, prescribed, administered, dispensed, or compounded, in violation of the provisions of this chapter, and any such narcotic drugs and any other property designed for use in connection with such unlawful manufacturing, possession,- controlling, selling, prescribing, administering, dispensing, or compounding, may be seized thereunder, and shall be subject to such disposition as the court may make thereof and such narcotic drugs may be taken on the warrant from any house or other place in which they are concealed.
“(b) A search warrant cannot be issued but upon probable cause supported by affidavit particularly describing the property and the place to be searched.
“(e) The judge or commissioner must, before issuing the warrant, examine on oath the complainant and any witnesses he may produce, and require their affidavits or take their depositions in writing and cause them to be subscribed by the parties making them.
“(d) The affidavits or depositions must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist.
“(e) If the judge or commissioner is thereupon satisfied of the existence of the grounds of the application or that there is probable cause to believe their existence, he must issue a search warrant, signed by him, to the major and superintendent of police of the District of Columbia or any member of the Metropolitan police department, stating the particular grounds or probable cause for its issue and the' names of the persons whose affidavits have been taken in support thereof, and commanding him forthwith to search the' place named for the property specified and to bring it before the judge or commissioner. ■
“(f) A search warrant may in all cases be served by any of the officers mentioned in its direction, but by no other person, except in aid of the officer on his1, requiring it, he being present and acting in its execution.
. “(g) The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance.
“(h) The judge or commissioner shall insert a direction in the warrant' that it may be served a\ any time in the day or night.”
"§23-521. Nature and issuance of search warrants
“(a) Under circumstances described in this subchapter, a judicial officer may issue a search warrant upon application of a law enforcement officer or prosecutor. A warrant may authorize a search to be conducted anywhere in the District of Columbia and may be executed pursuant to its terms.
“(b) A search warrant may direr a search of any or all of the following:
“(1) one or more designated or described places or premises;
"(2) one or more designated ór described vehicles;
“(3) one or more designated or described physical objects; or
“(4) designated persons.
"(c) A search warrant may direct the seizure of designated property or kinds of property, and the seizure may include, to such extent as is reasonable under all the circumstances, taking physical or other impressions, or performing chemical, scientific, or other tests or experiments of, from, or upon designated premises, vehicles, or objects.
“(d) Property is subject to seizure pursuant to a search warrant if there is probable cause to believe that it—
“(1) is stolen or embezzled;
"(2) is contraband or otherwise illegally possessed;
"(3) has been used or is possessed for the purpose of being used, or is designed or intended tn be used, to commit or conceal the commission of a criminal offense; or
"(4) constitutes evidence of or tends to demonstrate the commission of an offense or the identity of a person participating in the commission of an offense.
“(e) A search warrant may be addressed to a specific law enforcement officer or to any classification of officers of the Metropolitan Police Department of the District of Columbia or other agency authorized to make arrests or execute process in the District of Columbia.
“ (f) A search warrant shall contain—
“(1) the name of the issuing court, the name and signature of the issuing judicial officer, and the date of issuance;
“(2) if the warrant is addressed to a specific officer, the name off. that officer, otherwise, the classifications of officers to whom the warrant is addressed;
"(3) a designation of the premises, vehicles, objects, or persons to be searched, sufficient for certainty of identification;
“(4) a description of the property whose seizure is the object of the warrant;
“(5) a direction that the warrant be executed during the hours of daylight or, where the judicial officer has found cause therefor, including one of the grounds set forth in section 23-522 (c)(1), an authorization for execution at any time of day or night; •
“(6) where the judicial officer has found cause therefor, including one of the grounds set forth in subparagraph (A), (B), or (D) of section 23-591 (c) (2), an authorization that the executing officer may break and enter the dwelling house 05 other building or vehicles to be searched without giving notice of his identity and purpose; and
“(7) a direction that the warrant and an inventory of any property seized pursuant thereto be returned to the court on the next court day after its execution.
Ҥ23-522. Applications for search warrants
“(a) Each application for a search warrant shall be made in writing upon oath or affirmation to a judicial officer.
“(b) Each application shall include—
“(1) the name and title of the applicant;
“(2) a statement that there is probable cause to believe that property of a kind or character described in section 23-521 (d) is likely to be found in a designated premise, in a designated vehicle or subject, or upon designated persons;
“(3) allegations of fact supporting such statement; and
“(4). a request that the judicial officer issue a search warrant directing a search for and seizure of the property in question.
“The applicant may also submit depositions or affidavits of other persons containing allegations of fact supporting or tending to support those contained in the application.
“(c) The application may also contain—
“(1) a request that the search warrant be made executable at any hour of the day or night, upon the ground that there is probable cause to believe that (A) it cannot be executed during the hours of daylight,. (B) the property sought is likely to be removed or destroyed if not seized forthwith, or (C) the property sought is not likely to be found except at certain times or in certain circumstances; and
“(2) a request that the search warrant authorize the executing officer to break and enter dwelling houses or other buildings or vehicles to be searched without giving notice of his identity and purpose, upon probable cause to believe that one of the conditions set forth in subparagraph (A), (B), or (D) of section 23-591 (c) (2) is likely to exist at the time and place at which such warrant is to be executed.
“Any request made pursuant to this subsection must be accompanied and supported by allegations of fact supporting such request.”
At the time of the search in this case Rule 41 read, in part, as follows:
“Search and Seizure
“(a) Authority to Issue Warrant. A.search warrant authorized by this rule may be issued by a judge of the United States or of a state, commonwealth or territorial court of record or by a United States commissioner within the district wherein the property sought is located.
“(b) Grounds fcr Issuance. A warrant may be issued under this rule to search for and seize any property
“(1) Stolen or embezzled in violation' of the laws of the United States; or
“(2) Designed or intended for use or which is or has been used as the means of committing a criminal offense; or
“(3) Possessed, controlled, or designed or intended for use or which is or has been used in violation of Title 18, U. S. C., § 957.
“(c) Issuance and contents. A warrant shall issue only on affidavit sworn to before the judge or commissioner and establishing the grounds for issuing the warrant. If the judge or commissioner is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant. identifying the property and naming or describing the person or place to be searched. The warrant shall be directed to a civil officer of the United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States. It shall state the grounds or probable cause for its issuance and the names of the persons whose affidavits have been taken in support thereof. It shall command the officer to search forthwith the person or place "named for the propérty specified. The warrant shall direct that it be served in the daytime', but if the affidavits are positive that the property is On the person or in the place to be searched, the warrant may direct that it be served at
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_circuit
|
I
|
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.
JENSEN v. BANK LINE, Limited, et al. THE AYMERIC.
Circuit Court of Appeals, Ninth Circuit.
May 14, 1928.
No. 5352.
1. Shipping <§=386(2%)— Finding that shipowner was not liable for injuries to stevedore, caused by breaking of alleged defective shackle bolt in connection with loading booms, held proper under evidence.
In libel by employee of stevedore company against ship for injury sustained by him while loading lumber, due to breaking of shackle bolt attached to end of pennalit leading to one of loading booms of ship, finding of trial court that shackle was not defective or that defect was of such slight character that it could not be ascertained by exercise of ordinary care, and that shipowner was therefore not liable, 7ield proper under conflicting evidence.
2. Shipping <§=386(2%) — Injured stevedore, in libel against ship for injuries sustained when shackle pin connected with loading booms broke, was required to prove negligence.
Fact that shackle connected with loading booms of ship broke under strain of lumber being loaded on ship, causing injury to employee of stevedore company, did not of itself prove shipowner’s negligence in using the pin, under doctrine of res ipsa loquitur, and libelant was required to show that fracture was result of defect, and that claimant knew of that defect, or by the exercise of ordinary care could have discovered it.
3. Shipping <§=384(3'/4) — Where stevedore continued to load ship with gear furnished without further complaint, stevedore company was not liable for'failure to provide safe working conditions (Admiralty Rule 56).
In libel proceedings by employee of stevedore company for injury sustained in loading lumber on steamship by breaking of pin of shackle connected with loading booms, dismissal of ship claimant’s petition against stevedore company under Admiralty Buie 56 was not error, where stevedore continued to load ship with gear, which was furnished without further complaint, even if stevedore company improperly rigged preventer guy and failed to provide stevedores with proper place to work.
4. Admiralty <§=350 — Libelant who failed to adopt or answer claimant’s petition against third party could not complain that petition was dismissed (Admiralty Rule 56).
Where in stevedore’s libel proceedings against ship, in which claimant brought proceedings against stevedore company under Admiralty Buie 56, libelant failed to answer petition or to adopt allegations thereof and to request findings or to become party to proceedings against his employer, he was not entitled to assign error on account of court’s dismissal of claimant’s petition.
5. Admiralty <§=350 — Libelant cannot be com-, pelted to establish personal liability of third party brought into libel proceeding by claimant (Admiralty Rule 56).
By disregarding claimant’s petition bringing in third party under Admiralty Buie 56, libelant exercises right not to proceed against third party, and cannot be compelled to establish the personal liability of the third party; proceedings against third party being independent.
Appeal from the District Court of the United States for the District of Oregon; Robert S. Bean, Judge.
Libel by George Jensen against the Bank Line, Limited, as claimant of the British steamship Aymeric, in which W. J. Jones & Son, Inc., was joined on the claimant’s petition. From a decree dismissing the libel and the claimant’s petition, libelant appeals.
Affirmed.
While the appellant was working as an employee of a contracting stevedore company, in loading lumber upon a steamship, the pin of a shackle attached to the end of a pennant leading to one of the loading booms of the ship gave way under the strain of a load of lumber which was being dragged across the dock to the ship, and the appellant was injured by a blow from a block and a guy when the boom swung around. The gist of the allegations of the libel on which recovery was sought was that the loading gear of the vessel was not in seaworthy condition, that the shackle bolt which broke was defective, and that the defect could have been discovered by the vessel by the exercise of reasonable care, but that the vessel negligently failed to make inspection, and negligently turned over the loading gear to the stevedores and permitted them to use the same. The court below, in dismissing the libel, said:
“The shackle itself was introduced in evidence. Experts were called. Those called by the libelant testified positively that the shackle was manifestly defective and that the defect could have been ascertained by the exercise of reasonable care. Experts were called by the ship and testified directly to the contrary. All these experts examined the same shackle. One of them said, ‘It is defective.’ The other said, ‘It is not defective.’ So I suppose under these circumstances the court is justified in exercising its own judgment. I have carefully examined the shackle, and, so far as I can see, there is no substantial defect in it; certainly to my mind it is clear that, if there was a slight defect, it was of such a character that it would not have been ascertained by the exercise of ordinary care. Therefore the libel for this reason will be dismissed.”
Lord & Moulton, of Portland, Or., for appellant.
Wood, Montague & Matthiessen and Erskine Wood, all of Portland, Or., for appellee the Bank Line.
E. L. McDougal, of Portland, Or., for appellee W. J. Jones & Son, Ine.
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
GILBERT, Circuit Judge (after stating the facts as above).
Concerning the. condition of the shaekle pin and the strain under which it broke, all the testimony on behalf of the appellant, with the exception of that of one expert, was heard before the court. There was evidence that the pin had been subjected to extraordinary strain in dragging a heavy slingload of lumber, estimated by the first officer of the ship to weigh 2% tons, a distance of 180 feet across the dock. An expert witness, who had been employed in the repair department of the Emergency Eleet Corporation, testified that in his judgment the pin- was in prime condition prior to what he characterized as the enormous pressure which broke it, that otherwise it would not have distorted the eye of the pin or drawn the jaws of the shackle out of parallel. The chief engineer of the Willamette Iron & Steel Works testified! that in his opinion the pin was a good piece of metal before it broke, and that its appearance indicated a tough and live metal. On the other hand, an instructor in a local polytechnic school testified that the appearance of the pin indicated that it was crystallized, and several witnesses, who were longshoremen, or sailors, or workmen, also testified that the pin was crystallized, and some testified that there were visible defects which should have led to its rejection for further use. There was undisputed testimony of officers of the ship that all shackles were discarded after six months of use. We are of the opinion that no ground is shown for setting aside the conclusion reached by the trial court upon the testimony of the witnesses and the appearance of the shaekle pin.
Nor do we find merit in the Contention that the fact that the pin broke was in itself evidence of negligence in using the same or that this is a ease in which the rule of res ipsa loquitur may be invoked. Citation is made of The Rheola (C. C.) 19 F. 926; Steel v. McNeil (C. C. A.) 60 F. 105; The Portland (D. C.) 213 F. 699; Neptune Steam Nav. Co. v. Borkmann (C. C. A.) 118 F. 420. In the Rheola Case, a chain which was in appearance old, rusted, and worn, and which, if in proper condition, should have sustained a weight of 6 or 7 tons, broke under a weight of 1,800 pounds, shortly after a similar chain had broken under like conditions. It was held that there should have been ‘a careful and thorough test or examination before using the chain. In Steel v. McNeil, the injury was caused by the slipping of the pin from the eye of a shackle because of defects which had been noticed and pointed out to the mate by one of the longshoremen. In Neptune Steam Nav. Co. v. Borkmann, the fact that a piece of wire rope furnished by the ship for the stevedores broke under a weight only one-tenth of that which it should have supported if in good condition was held to be evidence that it was not in good condition. In The Portland, Judge Wolverton held the steamship liable by reason of the breaking of a’rope sling which had become frayed, worn, and attenuated, as would have been apparent to one making an inspection thereof, and that the fact that it broke was proof positive that it was defective. In the ease at bar, the evidence was conflicting as to whether the shaekle pin should have sustained a weight as great as that which caused it to break, and there was conflict in the evidence as to whether it was defective, and as to whether, if defective, the defects were discoverable by inspection. The most than can in general be claimed for the occurrence of such an aeeident is that, while it may tend to prove that a defect existed in the appliance whieh was used, the libelant must go farther and show that the fracture was the result of a defect, and that the claimant knew of that defect or by the exercise of reasonable care could have discovered it. Patton v. Texas & P. R. Co., 179 U. S. 658, 21 S. Ct. 275, 45 L. Ed. 361; San Juan Light Co. v. Requena, 224 U. S. 89, 98, 32 S. Ct. 399, 56 L. Ed. 680.
Under Admiralty Rule 56, which permits either the claimant or the respondent to bring in a party jointly liable to any party to the suit by way of remedy over or contribution, and provides that the suit shall proceed as if such new party had been jointly proceeded against, and requires the other parties in the suit to answer the petition and the new party to answer the libel, the owner of the vessel filed a petition against the stevedore company, praying that it be cited to answer the petition and the libel, and alleging that the accident occurred through the stevedore’s improper and negligent use of the ship’s gear. The stevedore company answered, alleging that the gear which was turned over to it by the steamship was represented to be in good condition, and was rigged by the officers and employees of the ship, that, if there was negligence in the use thereof, it was the negligence of the appellant and his fellow servants, and, if there were defects in the gear which the stevedore company could not by the exercise of reasonable care discover, the accident was caused by the negligence of the steamship and not through the fault of the stevedore company. When the libel was dismissed, the petition was also dismissed.
The appellant assigns error to the failure of the trial court to find that the stevedore company improperly rigged the prevent-er guy, and used an unseaworthy and defective shackle, and failed to exercise reasonable care in using said preventer guy, and negligently failed to provide the appellant with a reasonably safe place to work. The basis of the contention seems to be that the evidence showed the gear to be defective for want of preventer guys attached to the peak of the boom. The officers of the ship testified that at the request of the president of the stevedore company they installed preventer guys, one end of which was attached at the tip end of the boom, and the other to a bulwark stanchion below; each guy being a wire cable 70 or 80 feet, in length and three-fourths of an inch in diameter, and that a day or two prior to the accident the preventer guys were removed by the longshoremen. As to this there was sharp conflict in the testimony. The longshoremen, in the main, testified that there was no preventer guy on the ship when they began their work; that they applied to the ship for preventer guys, and were told that there were none; that they were given short guys of 20 feet in length, which they pieced together and used as a preventer guy running only from the block down to the deck to safeguard the tackle in the event that the ropes broke. But the fact remains that the stevedores continued to load with the gear without further complaint of its condition, and, if there was negligence in that regard, it was their own negligence. We find nothing in the record which required the trial court to make findings on the issues brought in by the petition.
Nor do we think that the appellant is in a position to assign the errors, if errors there were, which he now relies upon. He ignored the command of rule 56, and made no answer to the petition. Nor did he at any time adopt the allegations thereof or request findings thereon, or become a party to that proceeding. In New Jersey Shipbuilding & Dredging Co. v. Davis (D. C.) 291 F. 617, 619, Judge Learned Hand said: “The petition was a pleading requiring an actor and a reus just as much as though it had been a libel in the admiralty, a bill in equity, or a declaration at law.” In The Silverway (D. C.) 14 F.(2d) 154, 157, it was said: “The proceeding under rule 56 is an independent proceeding.” In disregarding the petition as he did, the appellant exercised his right to elect not to proceed against a party as to whom he made no claim, and whom the appellee had no right to substitute in its stead as the party primarily liable. Having elected to proceed in rem, he was not compellable to establish the liability in personam of a new party brought in by the claimant. The Providence (D. C.) 293 F. 595, 599.
The decree is affirmed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_genresp1
|
C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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.
DRESSER INDUSTRIES, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. WYO BEN, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents.
Nos. 82-4066, 82-4304.
United States Court of Appeals, Fifth Circuit.
Sept. 16, 1983.
Rehearing Denied Oct. 17,1983.
Donald A. Sutherlund, Washington, D.C., for petitioner, Dresser Industries, Inc.
Russell S. Sage, Alexandria, Va., for petitioner, Wyo Ben, Inc.
John Broadley, Gen. Counsel, Kathleen V. Gunnine, Atty., ICC, John J. Powers, III, Kenneth P. Kolson, Dept, of Justice, Washington, D.C., for respondents.
Donal L. Turkal, Curtis H. Berg, Alan R. Post, St. Paul, Minn., John F. Whitney, New Orleans, La., for intervenors, Burlington Northern R. Co., et al.
Before THORNBERRY, GEE and WILLIAMS, Circuit Judges.
THORNBERRY, Circuit Judge:
INTRODUCTION:
In these consolidated cases, petitioners Dresser Industries, Inc. [Dresser] and Wyo-Ben, Inc. [Wyo-Ben] seek review of decisions by the Interstate Commerce Commission [the Commission] and Review Board Number 3 of the Interstate Commerce Commission [the Board]. In their separate decisions, both the Commission and the Board determined that, in charging petitioners more to ship iron ore pelletizing [IOP] bentonite clay from Thermopolis, Greybull, and Lovell, Wyoming [prejudiced points] to Minnesota, Wisconsin, and Michigan [destination territories], than it charged a competing shipper to transport IOP bentonite a longer distance over the same line from Casper, Wyoming [preferred point] to the destination territories, Burlington Northern Railroad Company [BN] did not violate either 49 U.S.C.A. § 10726(a)(1)(A), 49 U.S.C.A. § 10741(a), or 49 U.S.C.A. § 10741(b). We conclude that since the decisions rendered by the Commission and the Board were supported by substantial evidence, and were neither arbitrary nor capricious, they must be allowed to stand. Accordingly, we AFFIRM.
FACTS:
Dresser and Wyo-Ben are IOP bentonite shippers served exclusively by BN and its connecting carriers. IOP bentonite is a soft, porous clay formed by the weathering of volcanic ash that is used in the production of taconite, a concentrated form of iron manufactured from relatively low grade iron ore. The taconite industry in this country is centered primarily in Minnesota, Wisconsin and the upper peninsula of Michigan.
Because of its great bulk and low value, IOP bentonite must be shipped by rail. Because of IOP bentonite’s generally uniform quality regardless of producer, delivered price is the single most important factor in the sale of this commodity to the taconite industry.
Dresser’s plant at Greybull, and Wyo-Ben’s plants at Thermopolis, Greybull and Lovell are all located in the same general area of Wyoming, west of the Big Horn Mountains. BN moves much of the traffic from these plants north through Laurel and Billings, Montana, then east through southern Montana and North Dakota to the destination territories [BN’s northern route] (see appended map). BN also moves some of this traffic south over a longer route through Casper, Wyoming and then east through Nebraska to the destination territories [BN’s southern route]. BN also uses these routes to ship IOP bentonite produced by Black Hills Bentonite Company, a competitor of Dresser and Wyo-Ben’s located at Casper, Wyoming. Casper is located 142 miles south of Thermopolis, 210 miles south of Greybull, and 243 miles south of Lovell on BN’s northern route.
The Chicago and North Western Transportation Company [CNW] also ships IOP bentonite produced by Black Hills Bentonite out of Casper. CNW’s short tariff route is the shortest of all the routes from Casper to the destination territories. However, because of self-imposed internal weight restrictions, CNW does not ship IOP bentonite via this route. Instead, it uses its longer, alternate route through Dakota Junction, Nebraska, Missouri Valley and Sioux City, Iowa to ship IOP bentonite from Casper to the destination territories. However, CNW is authorized to and does offer its short tariff rate on shipments out of Casper that are moved over its alternate route.
In the 1950s, the CNW and BN’s predecessors — the Northern Pacific Railway Company, the Great Northern Railway, and the Chicago, Burlington and Quincy Railroad Company [CBQ] — established two groups of rates from the Big Horn Basin of Wyoming to the destination territories. Greybull, Lovell, Thermopolis and all other points west of the Big Horn Mountains formed the west side rate group. Those shipping points located east of the Big Horn Mountains formed the east side rate group. East side rates were lower because different rail carriers competed for freight from east side points, and because these points were located closer to the destination territories than were west side points. When in 1965 one of CBQ’s customers moved east of the Big Horn Mountains to Casper, Wyoming, the CBQ filed an east side rate for all movements from Casper. The CNW also established an east side rate from Casper at that time.
As of July 5, 1981, BN’s rail rate on IOP bentonite shipments from the prejudiced points of Thermopolis, Greybull and Lovell to Minnesota destinations was $38.30 per net ton, while the rate from the preferred point at Casper to the same destinations was only $37.00 per net ton, for a difference of $1.30 per net ton. At the same time, BN’s rail rate on IOP bentonite from the prejudiced west side points to Michigan destinations was $40.56 per net ton, while the rate from Casper to the same destinations was again $37.00, for a difference of $3.56 per net ton. BN’s rates from Casper to the destination territories are identical to CNW’s rates from that city to the destination territories. Since BN charges either $1.30 or $3.56 per net ton more to ship IOP bentonite from points which are 142 (Thermopolis), 210 (Greybull) and 243 (Lovell) miles closer to the destination territories than Casper, BN indisputably charges Dresser and Wyo-Ben more to ship their IOP bentonite a shorter distance than it charges Black Hills Bentonite at Casper to ship IOP bentonite a longer distance to the same destinations.
Because of this rate disparity, Wyo-Ben and Dresser filed separate complaints with the Commission, charging that BN had violated 49 U.S.C.A. § 10726(a)(1)(A) [hereinafter section 26(a)(1)(A)] and 49 U.S.C.A. § 10741(a), (b) [hereinafter sections 41(a) and 41(b)]. The substance of these complaints is dealt with in our analysis infra. In separate decisions, the Commission and the Board found that BN had violated none of the cited provisions.
ANALYSIS:
Standard of Review
A decision by the Commission is presumptively valid. The Administrative Procedure Act in 5 U.S.C.A. § 706 provides that:
The reviewing court shall...
(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law [or]...
(E) unsupported by substantial evidence....
5 U.S.C.A. § 706(2)(A), (E) (West 1977). This Court applies the arbitrary and capricious-substantial evidence standard in reviewing decisions by the Commission. See Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974). To the extent that the Commission’s interpretation of section 26(a)(2), or sections 41(a), (b) might represent the adoption of some new standard, we are still bound by the arbitrary and capricious-substantial evidence standard in our review of its action. Nueces County Navigation District No. 1 v. ICC, 674 F.2d 1055, 1062 (5th Cir.), cert. denied, - U.S. -, 103 S.Ct. 446, 74 L.Ed.2d 601 (1982).
The Supreme Court in Bowman set out the limits of appellate review under the arbitrary and capricious standard.
Under the “arbitrary and capricious” standard the scope of review is a narrow one. A reviewing court must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.... Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. [402] at 416, 91 S.Ct. [814] at 824 [28 L.Ed.2d 136]. The agency must articulate a “rational connection between the facts found and the choice made.” Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962). While we may not supply a reasoned basis for the agency’s action that the agency itself has not given, SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947), we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595, 65 S.Ct. 829, 836, 89 L.Ed. 1206 (1945).
Bowman, 95 S.Ct. at 442. This Court has in numerous cases applied the Supreme Court’s guidelines under that standard in ICC cases.
Substantial evidence, while less than the weight of the evidence, is such evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). The fact that two different conclusions could be drawn from the evidence does not preclude the Commission’s finding from being supported by substantial evidence.
49 U.S.C.A. § 10726
The administrative law judge [ALJ] in Dresser found that BN charged a higher rate for transporting IOP bentonite from Greybull to destination, than for transporting the same commodity a longer distance from Casper to destination. The ALJ concluded that this rate disparity constituted a prima facie violation of the long haul/short haul clause of the Interstate Commerce Act, which provides:
(a)(1) A carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter I or III of chapter 105 of this title (except an express carrier) may not charge or receive more compensation for the transportation of property of the same kind or of passengers—
(A) for a shorter distance than for a longer distance over the same line or route in the same direction (the shorter distance being included in the longer distance).
49 U.S.C.A. § 10726(a)(1)(A) (West Supp. 1983). However, the ALJ in Dresser ultimately concluded that the challenged rate disparity fell within the exception to section 26(a)(1)(A) provided by section 26(a)(2), which states:
(2) Notwithstanding paragraph (1) of this subsection, a carrier operating over a circuitous line or route to or from a place in competition with another carrier of the same type that operates over a more direct line or route may establish a rate (otherwise complying with this chapter) for that transportation to meet the rate of the carrier operating over the more direct line or route.
49 U.S.C.A. § 10726(a)(2) (West Supp.1983). The ALJ determined that section 26(a)(2) authorized the carrier (BN) moving over a circuitous route (BN’s northern route) from a place (Casper) in competition with another carrier of the same type (CNW) operating over a more direct route (CNW’s short tariff route) to establish a rate (BN’s northern route rate for traffic from Casper to the destination territories) to meet the rate of the carrier operating over the more direct route (CNW’s short tariff rate for traffic from Casper to destination). In so doing, he correctly noted that the purpose of section 26(a)(2) is to allow the circuitous route carrier (BN) to compete on an equal basis with the carrier enjoying the more direct route (CNW) without extending the reduced rate at the preferred point (Casper) to shippers (Dresser) at other points on its route (Greybull) where the same competitive forces are not present. Both the Board and the Commission approved the ALJ’s decision without comment.
The ALJ in Wyo-Ben similarly determined that although Wyo-Ben’s plants at Thermopolis, Greybull and Lovell were respectively 142, 210 and 243 miles closer to destination than Casper, BN was authorized under section 26(a)(2) to charge more for shipments along its northern route from these prejudiced points than for shipments from Casper. The Board affirmed, finding that because BN had demonstrated: (1) that it competed for traffic with CNW at the preferred point; (2) that it faced no competition at the prejudiced points; and (3) that CNW enjoyed the most direct line (CNW’s short tariff route) from Casper to the destination territories, BN was entitled to charge more for shipments from the prejudiced points than for shipments from the preferred point. The Board considered Wyo-Ben’s contention that although CNW had the most direct route from Casper to destination, it did not carry IOP bentonite over that route because of self-imposed internal weight restrictions, and that the route actually used by CNW to ship IOP bentonite from Casper to destination (CNW’s alternate route) was actually longer, and therefore less direct, than BN’s northern route. However, the Board rejected the argument that these facts precluded BN from relying upon section 26(a)(2), stating that:
Short-line tariff mileages have traditionally been used to compute mileages, regardless of how the carrier handles the movement internally. It has been recognized that a carrier may route a shipment over some route other than its short-line route for its own operating purposes, but that the shipper should be charged according to the short-line route. A comparison of the BN’s and CNW’s short-line routes shows that the CNW has the most direct route. The fact that CNW may internally decided [sic] to operate over another route, or that complainant may choose another of CNW’s routes, does not negate the fact that CNW’s presence creates real and substantial competition for the BN at Casper.
Both Dresser and Wyo-Ben contend again on appeal that: (1) because CNW’s short tariff route is subject to internal weight restrictions precluding its use for IOP bentonite shipments; and (2) CNW’s alternate route, which it actually uses to ship IOP bentonite from Casper to destination, is 13 miles longer than BN’s shortest route (BN’s northern route), BN therefore possesses the more direct route from Casper to destination, and may not avail itself of the exception provided in section 26(a)(2). Refracted through the lens of section 26(a)(2), this argument is variously presented by petitioners in the following forms: (1) Since CNW does not ship IOP bentonite over its short tariff route, and its other routes are longer than BN’s northern route, CNW is not another carrier of the same type “that operates over a more direct line or route”; (2) BN is not establishing its Casper rate “to meet the rate of the carrier operating over the more direct line or route.” Because of the way the statute is worded, these arguments are essentially indistinguishable from one another in substance, if not in form.
Dresser and Wyo-Ben seek to impose upon section 26(a)(2) a technical and unrealistic construction in total disregard of its underlying purpose.
Prior to the enactment of section 26(a)(2), carriers operating over circuitous routes who found themselves faced with competition from similar carriers operating over more direct routes had to apply to the Commission for an exemption from the section 26(a)(1)(A) prohibition against charging higher rates for shipments travelling shorter distances along the same line to the same destination. In proceedings leading to the enactment of section 26(a)(2), the House Commerce Committee set out the statute’s purpose in the following terms:
PURPOSE OF BILL
The purpose of the bill, by amending Section 4(1) [Section 26(a)(1)(A)] of the Interstate Commerce Act, is to eliminate prior approval of the Interstate Commerce Commission for the publication of rates over “circuitous routes” equivalent to going rates for a “direct route” of the same type of carrier when, in the managerial discretion of the carriers, such rates are necessary for competitive reasons.
H.R.Rep. No. 577, 85th Cong. 1st Sess. (1957), U.S.Code Cong. & Admin.News 1957, pp. 1301, 1301 (emphasis added).
Neither Dresser nor Wyo-Ben disputes that, in accordance with the traditional and accepted method of setting rail rates, CNW offers its short tariff rate to shippers shipping IOP bentonite from Casper to destination along its alternate route. Furthermore, neither Dresser nor Wyo-Ben attacks this practice, or claims that it is in any way unusual, impermissible or unfair.
It is undisputed that BN’s only competitor at Casper is CNW, and that BN faces no rail competition at the prejudiced points. For purposes of this appeal, the only competition addressed by section 26(a)(2) and faced by BN is rate competition at Casper. From BN’s perspective, it is irrelevant whether CNW actually ships IOP bentonite via its short tariff route, or along its alternate route. As long as CNW is authorized and does offer shippers its short tariff rate on all IOP bentonite traffic originating at Casper, then that is the rate with which BN will have to compete.
Indeed, close reading of section 26(a)(2) reveals that the purpose of that statute is to permit a disadvantaged carrier to meet a lawful rate established by a competing carrier; the statute by its words only applies where the carrier operating over the more circuitous line or route is “in competition with another carrier of the same type.” Whether CNW does or does not operate over a more direct route is itself insignificant; the existence of the short tariff route is significant in the context of section 26(a)(2) only insofar as it permits CNW to charge.a short tariff rate that undercuts BN’s rate from Casper to destination, that is, to enjoy a competitive advantage of which BN would otherwise be deprived. Returning to the language of section 26(a)(2): (1) The fact that CNW does not “operate” over a more direct route is irrelevant; from the perspective of the competing carrier (BN), the competitive rate threat from CNW is as real as if CNW actually shipped IOP bentonite over its short tariff route; (2) Since CNW offers only the short tariff rate out of Casper, that is the rate which BN must “meet.”
Under the standard of review applicable in cases of this sort, we have no difficulty discerning the path taken by the Board in denying Wyo-Ben’s section 26(a)(1)(A) claim. The Board’s reasoning was no different from our own. In denying Dresser’s section 26(a)(1)(A) claim, the Commission adopted the factual findings and conclusions of the Board and the ALJ. The Board refused to disturb the findings and conclusions of the ALJ in that case, and the ALJ’s decision was based upon sound reasoning identical to our own. It is true that neither the ALJ nor the Board in Dresser were presented any evidence that CNW did not in fact ship IOP bentonite over its short tariff route to destination. However, in denying Dresser’s petition to reopen, the Commission noted that this new evidence had been considered and disposed of by the Board in the Wyo-Ben proceeding, thereby indicating its approval of the Board’s treatment of this evidence. Although not explicit, the Commission’s reasoning in rejecting the petition to reopen on the basis of the new evidence is readily discernible; we need engage in no post hoc rationalization to supply our own analysis where the Commission has already indicated its adoption of the Board’s analysis in a separate proceeding. Bowman, 95 S.Ct. at 442.
Advancing yet another variation on a now familiar theme, Dresser and Wyo-Ben contend that because BN’s predecessor, the CBQ, first established the rate at Casper and has controlled the rate there since that time, BN is not acting “to meet the rate of the carrier operating over the more direct line or route,” here, CNW. We decline the invitation to split this particular hair with petitioners. The historical inquiry into who first set the Casper rate is not dispositive of this issue; the point is that the rate at Casper is lower than at the prejudiced points, the Casper rate currently practiced by CNW is its short tariff rate, and BN could not charge less for shipments from Casper than from its prejudiced points unless CNW was entitled to practice its short tariff rate at Casper. There is no evidence that BN has controlled the rate at Casper up to the present time.
Indeed, petitioners’ earlier argument that BN is not entitled to practice CNW’s short tariff rate at Casper because CNW’s short tariff line is not operable for IOP bentonite shipments presumes that the prevailing rate at Casper is CNW’s, and not BN’s. Were this not so, petitioners would be arguing that because CNW’s short tariff route is inoperable, BN is precluded from meeting a rate established and maintained by BN. Petitioners cannot have it both ways. And in any event, section 26(a)(2) simply authorizes BN to set a rate “to meet the rate of the carrier operating over the more direct line or route.” We have already established that, for BN’s purposes, CNW is the carrier operating over the more direct line or route. CNW’s short tariff rate is the rate BN is authorized to meet under section 26(a)(2).
Dresser also argues on appeal that there is no competition at Casper, claiming that the record contains not a shred of evidence that CNW ships IOP bentonite from Casper to the destination territories. However, the decision of the ALJ in Wyo-Ben contains the following statements:
Wyo-Ben competes with several concerns in marketing IOP bentonite to the taco-nite industry. For example, Black Hills Bentonite Company, a leader over the years in sales volume, has a major facility located in Casper.... Wyo-Ben stresses that if [sic] filed this complaint because “of the discriminatory rail rate structure which exists” relative to the transportation of IOP bentonite to taconite producers in Minnesota and Michigan as between its facilities and that of its principal competitor, Black Hills at Casper. It details in the record that the rail rate on IOP bentonite from each of its facilities to Minnesota destinations is $38.30 per net ton, while that from Casper to the same destination is $37.00 a net ton.... The rail rate on IOP bentonite from each of its facilities to Michigan destinations is $40.56 per net ton, while that from Casper to the same destination is $37.00, a difference of $3.56 per net ton.... Around 1965, the eastern district IOP bentonite rate was extended to Casper when Black Hills established a new bentonite plant and closed their Moorcroft plant.
The Commission in its Dresser decision found that a total of 1250 cars of clay were moved by CNW from east side points in October 1979 alone. Furthermore, in a verified statement submitted to the Commission, Mr. Melvin K. Lofton, Traffic Manager for Dresser’s Domestic Oilfield Products Group, stated that some service was provided by CNW out of Casper.
As noted above, the Commission reviewed the Board’s Wyo-Ben decision in rejecting Dresser’s petition to reopen. We conclude that the above information excerpted from the ALJ’s decision in Wyo-Ben, coupled with the Commission’s findings in Dresser and Mr. Lofton’s statement, constitute evidence sufficiently substantial to support a finding that CNW competed with BN for IOP bentonite shipments at Casper.
Last, Dresser argues that because section 26(a)(2) is only applicable to rates otherwise complying with Chapter 107 of the Interstate Commerce Act, and that BN’s Grey-bull rate is violative of sections 41(a) & (b), BN may not rely on section 26(a)(2) to justify charging more for shipments from the prejudiced points, than from the preferred point. Even if BN’s Greybull rate did violate section 41(a) or (b), the rate which section 26(a)(2) states must otherwise be in compliance with this chapter is not BN’s Greybull rate, but its Casper rate. And in any event, even if Dresser’s interpretation did not fly in the face of the plain language of section 26(a)(2), our conclusion infra that BN’s Greybull rate does not violate either sections 41(a) or (b) disposes of Dresser’s claim.
Our examination of section 26, the evidence, and Dresser’s and Wyo-Ben’s several arguments leaves us with the firm conviction that neither the Commission’s disposition of Dresser’s section 26(a)(1)(A) claim, nor the Board’s resolution of Wyo-Ben’s challenge under that same subsection, was arbitrary or capricious, or unsupported by substantial evidence. Accordingly, we AFFIRM that portion of those decisions rejecting Dresser’s and Wyo-Ben’s claims under section 26(a)(1)(A).
49 U.S.G.A. § 10741(b)
49 U.S.C.A. § 10741(b) provides in pertinent part:
(b) A common carrier providing transportation or service subject to the jurisdiction of the Commission under chapter 105 of this title may not subject a person, place, port, or type of traffic to unreasonable discrimination.
49 U.S.C.A. § 10741(b) (West Supp.1983) (emphasis added). Dresser and Wyo-Ben claim that by charging more for shipping IOP bentonite from the prejudiced points than from the preferred point, BN subjects them to unreasonable discrimination under section 41(b).
It is well settled that to prove a violation of this section, it must be shown that:
1. A rate disparity exists;
2. There is actual or potential competitive injury;
3. The defendant is the common source of both the prejudicial and preferential rate; and
4. The rate disparity is not justified by transportation conditions.
Harborlite Corp. v. ICC, 613 F.2d 1088, 1091-92 (D.C.Cir.1979); State of New York v. United States, 568 F.2d 887, 898 (2d Cir.1977); A. Lindberg & Sons v. United States, 408 F.Supp. 1032, 1037 (W.D.Mich. 1976). Once the first three elements are shown, the burden shifts to defendant to show that the rate disparity is justified by transportation conditions. Harborlite, 613 F.2d at 1092.
The ALJ in Dresser found that each of the first three conditions had been met, and that the rate disparity was not justified. On appeal, however, the Board held that the presence of CNW at Casper was a competitive restraint justifying the difference in rates. The Commission affirmed.
The ALJ in Wyo-Ben found that BN’s rates at the prejudiced points did not violate section 41(b). The Board affirmed, holding that the existence of carrier competition at one point and lack of carrier competition at another constituted a difference in transportation conditions under section 41(b). Relying on the ALJ’s finding under section 26(a)(2) that carrier competition existed at Casper, but not at the prejudiced points of origin, the Board concluded that defendants had established a difference in transportation conditions under section 41(b).
Both the Commission and the Board relied principally upon H. Samuels Co. v. Atchison, Topeka & Santa Fe Ry., 364 I.C.C. 280 (1980) in reaching their conclusions. The Board in Samuels stated that:
A rate disparity is not unreasonably discriminatory if it is justified by a difference in transportation conditions. A condition that may differ between compared services is the availability of alternative transportation.
Id. at 285. Wyo-Ben argues on appeal that this rule only applies where the rail carrier does not control the rates at both the preferred and prejudiced points, quoting the following language from Samuels:
As a general matter, we intend to recognize common control only where a carrier or source has such direct and obvious control of both the higher and lower rates.that it can reasonably be held responsible for treating the complainant and its competitors differently.
Id. at 282. Wyo-Ben claims that because BN allegedly controls the rates at both Casper and the prejudiced points, it “can reasonably be held responsible for treating the complainant and its competitors differently,” and thus unreasonably discriminates against Wyo-Ben. This argument misses the mark completely. Common control is the third element that must be proved to make out a violation of section 41(b), not the fourth. A carrier can have actual control of rates at both the preferred and prejudiced points and still not discriminate unreasonably against the shipper at the prejudiced point as long as the preferred rate is justified by the existence of a valid transportation condition. The Board in Samuels found that even where the railroad had common control of rates at both the preferred and prejudiced points, its discriminatory rates were not unreasonable because the competitive rates of other carriers at the preferred point constituted such a condition. Samuels does not say that competition at the preferred point is a valid transportation condition only where the carrier does not control the rates at both the preferred and prejudiced points. Indeed, if the carrier were shown to control the rates at only one of these two classes of points, complainant would have failed utterly to prove the third element of his action, and there would be no need for the carrier to then show the existence of a valid transportation condition. Samuels stands for the proposition that where the carrier controls the rates at both points, the disparity between them is not unreasonably discriminatory where a valid transportation condition exists in the form of a competing carrier at the preferred point.
Dresser claims that if BN controls both its own and CNW’s rates at Casper, then CNW is not a competing carrier whose presence at Casper constitutes a transportation condition justifying BN’s discriminatory rate structure. Dresser makes three arguments.
First, Dresser claims that because BN has the shortest operable route from Casper to the destination territories, it also has the least expensive and most competitive route. Consequently, Dresser argues, BN controls the rate at Casper, a rate independent of CNW’s Casper rate.
In our analysis of Dresser’s and Wyo-Ben’s claim under section 26(a)(1)(A), we concluded that even if BN had the shortest route from Casper to destination along which IOP bentonite was actually shipped, the fact that CNW was authorized to, and did, charge the lower short tariff rate on its alternate route justified BN’s lower rate at Casper, as well as the resulting disparity between rates at the preferred and prejudiced points. We concluded that CNW was a competing carrier at Casper despite the internal weight restrictions on its short tariff route. Our conclusion applies with equal force here. CNW presents a competitive threat to BN at Casper. Under Samuels, this competition is a transportation condition justifying the otherwise unreasonable rate disparity.
Second, Dresser argues that because the rate at Casper was initiated by BN’s predecessor, CBQ, BN controls that rate today. Our disposition of that argument in our treatment of the section 26(a)(1)(A) claims supra is controlling here. Determining that a carrier initiated a rate many years ago does not establish that this same carrier controls the rate today. The lower rate practiced by both BN and CNW at Casper is CNW’s short line rate. This rate is a competitive restraint, and a valid transportation condition justifying BN’s discriminatory rate structure.
Last, Dresser and Wyo-Ben ask this Court to reverse the decisions of the Board and the Commission for their failure to consider whether the degree of rate disparity was justified. In Harborlite Corp. v. ICC, 613 F.2d 1088 (D.C.Cir.1979), the D.C. Circuit held that:
It is insufficient for the carrier to show that transportation circumstances are not identical for the allegedly preferred and the allegedly prejudiced shipments, for the question is not whether any disparity is warranted. What the carrier must justify is the particular disparity existing in the case under consideration.
Id. at 1100. The Court went on to remand that case because the Commission had failed to determine whether the disparity in rates accurately reflected the differences in costs on the two lines.
Our ease is quite different from Harborlite. Neither Dresser nor Wyo-Ben challenged CNW’s Casper rate. We have already determined that BN is authorized to meet that rate under section 26(a)(2), and that CNW’s rate constitutes a competitive restraint on BN. Petitioners challenge the disparity between BN’s Casper rate, and its rate at the prejudiced points. The only condition justifying this disparity is CNW’s competitive Casper rate. No other competitive advantages are claimed in justification of this
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_numresp
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of 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.
CITY OF FORT LAUDERDALE, Appellant, v. EAST COAST ASPHALT CORPORATION et al., Appellees.
No. 19549.
United States Court of Appeals Fifth Circuit.
March 26, 1964.
Rehearing Denied June 10, 1964.
C. Shelby Dale, Fort Lauderdale, Fla., for appellant.
Richard M. White, Miami, Harrison D. Griffin, Fort Lauderdale, Thomas H. Anderson, Earl D. Waldin, Jr., Miami, Fla., for appellees.
Before TUTTLE, Chief Judge, and WISDOM and GEWIN, Circuit Judges.
GEWIN, Circuit Judge.
This case is related to the case of Hardrives Co., Inc., et al. v. East Coast Asphalt Corp., et al. No. 19864, 5 Cir., 329 F.2d 868, and the case of United States v. South Florida Asphalt Co., et al. No. 19635, 5 Cir., 329 F.2d 860, both decided this same date. The conduct about which complaint is made is the violation of the Sherman and Clayton Acts. This appeal is from an order dismissing the complaint of the City wherein an injunction and treble damages were sought.
The record is not clear, but apparently the trial judge dismissed the complaint because he considered that the goods and materials alleged to be involved came to rest in the state of ultimate consumption prior to the sale of the same to the parties who finally utilized them; and that such fact eliminated the “in commerce” character of the goods.
The allegations of the complaint in this case are substantially the same as in the Hardrives case. This Court has repeatedly held that complaints in civil cases should not be dismissed unless it clearly appears that under no theory can the plaintiff be entitled to relief. Des-Isles v. Evans, 5 Cir., 200 F.2d 614; City of Daytona Beach v. Gannett, 5 Cir., 253 F.2d 771; Mannings v. Board of Public Instruction, etc., 5 Cir., 277 F.2d 370.
We think that this complaint alleges facts on which relief could be granted on two grounds, first this Court has held that contractors engaged in the construction of interstate highways and other facilities of interstate commerce are engaged “in commerce.” Archer v. Brown & Root, Inc., 5 Cir., 241 F.2d 663, 667, cert. denied 355 U.S. 825, 78 S.Ct. 33, 2 L.Ed.2d 39; Mitchell v. Hooper Equipment Co., 5 Cir., 279 F.2d 893. The Supreme Court has, of course, held likewise. Mitchell v. C. W. Vollmer & Co., 349 U.S. 427, 75 S.Ct. 860, 99 L.Ed. 1196. It is no argument to say that wage and hour cases are no authority for Sherman Act cases. Of course they are not necessarily authority to the extent> that they deny coverage. On the other hand, if they grant coverage on the basis of the employees actually being engaged in commerce then they are authority for what constitutes interstate commerce. Thus, we conclude that the allegation that the local conspiracy has artificially set prices for materials which its members sell or install for the construction of arteries of interstate commerce, is an adequate allegation of a conspiracy in interstate commerce.
Moreover, for the second point, we think the allegations of the manner in which the conspiracy, even though it be “local” in nature, affects commerce are sufficient to withstand a motion to dismiss. In United States v. Employing Plasterers Assoc. of Chicago, 347 U.S. 186, 74 S.Ct. 452, 456, 98 L.Ed. 618, the Supreme Court said, in a criminal case:
“The complaint plainly charged several times that the effect of all these local restraints was to restrain interstate commerce. Whether these charges be called ‘allegations of facts’ or ‘mere conclusions of the pleader,’ we hold that they must be taken into account in deciding whether the Government is entitled to have its case tried.
“We are not impressed by the argument that the Sherman Act could not possibly apply here because the interstate buying, selling and movement of the plastering materials had ended before the local restraints became effective. Where interstate commerce ends and local commerce begins is not always easy to decide and is not decisive in Sherman Act cases. See Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 232 [68 S.Ct. 996, 1004, 92 L.Ed. 1328].”
We think that the conspiracy alleged in this case dealing with the type of business in which the appellees are engaged falls well within the reasoning vf this case.
See also United States v. Women’s Sportswear, 336 U.S. 460, 69 S.Ct. 714, 93 L.Ed. 805.
The judgment of dismissal was in error.
The judgment is reversed and the case is remanded to the trial court for further proceedings not inconsistent with this opinion.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_const2
|
105
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
FEDERAL TRADE COMMISSION, Appellee, v. COMPAGNIE DE SAINT-GOBAIN-PONT-A-MOUSSON, Appellant.
No. 78-2160.
United States Court of Appeals, District of Columbia Circuit.
Argued 18 Oct. 1979.
Decided 17 Nov. 1980.
John T. Synnestvedt, John S. Child, Jr., Synnestvedt & Lechner, Philadelphia, Pa., for appellant.
Thomas A. Masterson, Philadelphia, Pa., a member of the bar of the Supreme Court of the United States, pro hac vice, by special leave of court, with whom Miles W. Kirkpatrick, Charles W. Smith and D. Edward Wilson, Jr., Washington, D. C., were on brief, for appellant.
David M. Fitzgerald, Atty., F. T. C., Washington, D. C., with whom Michael N. Sohn, General Counsel, Gerald P. Norton, Deputy Gen. Counsel and W. Dennis Cross, Asst. Gen. Counsel, F. T. C., Washington, D. C., were on brief, for appellee.
Before McGOWAN and WILKEY, Circuit Judges and GESELL, United States District Judge for the District of Columbia.
Sitting by designation pursuant to 28 U.S.C. § 292(a).
Opinion for the Court filed by Circuit Judge WILKEY.
Opinion concurring filed by Circuit Judge McGOWAN.
WILKEY, Circuit Judge:
This case addresses a narrow issue of broad international consequence: did Congress expressly or impliedly authorize the Federal Trade Commission (FTC or Commission) to serve its investigatory subpoenas directly upon citizens of other countries by means of registered mail? Although on the surface this question appears to rest solely upon statutory interpretation, our answer to it is primarily guided by our recognition of established and fundamental principles of international law.
Federal courts have long acknowledged that the investigatory and regulatory reach of domestic agencies may, and often must, extend across national boundaries. This court has previously recognized that those agencies may under certain circumstances compel production of documents located abroad. We cannot, however, simply assume from these precedents that Congress intended to authorize regulatory agencies in general — and the FTC in particular- — to employ any and all methods to serve compulsory process when conducting their investigations. When an American regulatory agency directly serves its compulsory process upon a citizen of a foreign country, the act of service itself constitutes an exercise of American sovereign power within the area of the foreign country’s territorial sovereignty. Though some techniques of service may prove less obnoxious than others to foreign sensibilities, our recognition of those sensibilities must affect our willingness to infer congressional authorization for a particular mode of service from an otherwise silent statute. In the face of the foreign country’s direct protest to the mode of service employed here, and in the absence of clear congressional intent at the time this subpoena was served to authorize that manner of exercise of American sovereign power, we decline to infer the necessary statutory authority for the FTC’s chosen mode of subpoena service.
I. BACKGROUND
Since 1977 the FTC has been engaged in a nonpublic antitrust investigation of the U.S. fiberglass insulation industry to determine whether a number of fiberglass manufacturers and distributors have engaged in acts or practices in violation of section 5 of the FTC Act. One of the principal targets of the FTC investigation has been Compagnie de Saint-Gobain-Pont-a-Mousson (SGPM), a French holding company headquartered in Paris, but with a general delegate based in New York City. In September 1977 the Commission issued four identical subpoenas duces tecum directing SGPM to produce specified classes of documents relevant to the investigation. One copy of the subpoena was served by registered mailing to SGPM’s corporate headquarters in Paris; the second was hand-delivered to the New York office of SGPM’s general delegate in the United States; the third was delivered to the New York City residence of the daughter of SGPM’s general delegate; and the fourth was served upon the Washington, D.C. attorney representing SGPM in a related proceeding. When SGPM refused to comply with the subpoenas, the Commission petitioned the district court for an enforcement order pursuant to section 9 of the FTC Act. In response to the district court’s order to show cause why the petition should not be granted, SGPM asserted that it should be excused from compliance because none of the modes of subpoena service employed were authorized by the FTC Act. Finding the subpoena relevant to the Commission’s inquiry and the mode of service to be proper, the district court issued the requested order enforcing the subpoena on 29 September 1978.
On appeal from the district court’s denial of SGPM’s motion to stay the enforcement order, this court remanded the record to the district court. Addressing only the issue whether the investigatory subpoena had been served upon SGPM in a lawful manner, we concluded that the latter three methods of subpoena service employed by the Commission were improper. We directed the district court on remand to “examine carefully the validity vel non of [the first method of] service by the registered mailing to [SGPM’s] corporate headquarters in Paris,” and in particular, to construe the relevant authorizing statutes to determine the underlying congressional intent. At the time we cautioned the district court to pay special attention to whether its construction of the relevant statutes conformed to accepted principles of international law, “since Congress is customarily presumed, unless a plain intention appears to the contrary, to avoid conflict with such principles as well as with the Constitution.”
Following argument on remand, the French Embassy sent a note to the State Department, protesting that the FTC’s direct transmittal of its subpoena to SGPM’s Parisian headquarters via registered mail constituted an infringement of French national sovereignty. The French government’s protests notwithstanding, the district court concluded that neither the Constitution nor statute “intended to deny the FTC the right to send a subpoena by mail to a foreign corporation suspected... of unfair trade practices in violation of the Federal Trade Commission Act.” Consequently, on 14 February 1980, the district court issued a second order reiterating its original enforcement of the FTC subpoena. For reasons articulated below, we vacate both the enforcement order dated 29 September 1978 and the order dated 14 February 1980.
II. ANALYSIS
The sole issue to be resolved on this appeal is the propriety of the technique employed by the FTC to serve its subpoena abroad — namely, registered mailing to a foreign citizen on foreign soil. We will begin by examining whether, at the time service was attempted, the language of the FTC Act expressly authorized service by registered mail of FTC subpoenas abroad and whether the legislative history of the FTC Act and similarly worded statutes revealed any congressional intent to authorize such a mode of service. Next, after clarification of two distinctions blurred by the opinion below, we reject the district court’s conclusions that accepted principles of international law condone the mode of subpoena service employed here. We then suggest that basic canons of statutory construction do not permit authority for such a mode of subpoena service to be inferred from the FTC’s general jurisdictional mandates to investigate and regulate foreign and interstate commerce.
We conclude that, at the time the subpoena was served, Congress intended to authorize the FTC to employ only those customary and legitimate methods of service of compulsory process commonly employed by American courts and administrative agencies when serving its subpoenas abroad. Because service of compulsory process by registered mail had not customarily proved a legitimate means of summoning a third-party witness to appear, with or without documents, in an agency investigation, we find that the method of service employed by the FTC in this case was unauthorized and hence invalid.
A. Statutory Language and Legislative History
Traditional techniques of statutory construction avail us little in uncovering Congress’ intent regarding proper methods of subpoena service abroad. Opposing counsel acknowledge that, as of the date of the service challenged here, the language of the FTC Act nowhere expressly authorized, nor expressly prohibited, direct service of FTC subpoenas abroad by means of registered mail. We shall briefly canvass those statutory provisions potentially applicable at the date of service.
Section 5(f)(c) of the FTC Act, set out in the margin provided that “[cjomplaints, orders, and other processes of the Commission under this section may be served” by registered or certified mail. In ruling on SGPM’s motion to quash, however, the Commission correctly read the plain language of section 5(f)(c) not to apply to the service of the investigatory subpoenas challenged here, because such subpoenas, issued under section 6, 9, and 10 of the Act simply did not constitute “processes of the Commission under this section [section 5].” Nor did section 6(g) of the Act, granting the Commission broad rulemaking authority to shape its investigatory procedures authorize or prohibit the manner of service employed here. It is true that this provision had previously been construed to afford the FTC broad discretion in determining which modes of service of process were appropriate. In fact, under this statutory section, the FTC promulgated its Rule of Practice 4.4(a), which specifically authorized service of subpoenas by registered or certified mail. Yet rule 4.4(a), as it existed at the time of service, suggested no limits as to where, or upon whom, subpoenas might properly be served.
When the challenged subpoena was served, the only statutory source of instruction as to the permitted geographic range of subpoena service was FTC Act section 9, which empowered the Commission to require by subpoena the attendance of witnesses and the production of documentary evidence relating to a matter under investigation “from any place in the United States, at any designated place of hearing.” This seemingly unambiguous language of section 9 (and of statutes incorporating identical locutions) had engendered surprising controversy. In FMC v. DeSmedt, Judge Friendly reviewed the legislative history of the “from any place in the United States” language of a provision nearly identical to that found in the FTC Act. He found that the phrase had first been added to the original ICC Act in order to clarify the agency’s power to compel a witness’ appearance by subpoena inside the United States, but outside the boundaries of the judicial district in which the witness resided. Despite the note of caution injected by the dissent to DeSmedt, this Circuit chose to adopt Judge Friendly’s' rationale virtually without analysis in CAB v. Deutsche Lufthansa Aktiengesellschaft, finding that the language in question “was not intended as a limitation on agency subpoena authority, but rather... to free the agency of the geographic limitations imposed on subpoenas issued by the district courts.”
While these cases clearly suggested that documents might be subpoenaed by regulatory agencies from anywhere inside the United States — and, in some cases, might be obtainable even when located outside the territorial jurisdiction of the United States — they by no means suggested that Congress intended the FTC subpoena power to have no place or manner limits whatever. Neither opinion cast light on the modes of subpoena service expressly endorsed by the legislative branch — in neither DeSmedt nor Lufthansa was the propriety of the technique of subpoena service at issue. Furthermore, neither case expressly considered the particular situation before us — subpoena service upon a foreign citizen residing on foreign soil. Thus, neither the terms of the relevant statute, nor the cases interpreting those terms, conclusively settle the novel issue before us.
Nor does the legislative history of the FTC Act or similar statutes afford us any guidance. Both parties agreed, and the court below acknowledged, that at the time of service the history of the Act was “wholly silent” regarding which modes of foreign service of investigatory subpoenas were or were not proper.
Confronted with both a silent statute and an uninstructive legislative history, the district court sought guidance in the breadth of authority granted by the Constitution to Congress to regulate commerce with foreign nations — a power “as great if not greater, than its power to regulate interstate commerce.” When Congress created the FTC as the agency charged with investigation and regulation of unfair trade practices, the district court concluded, it must have intended that agency to wield the “broadest power to make commerce, foreign and domestic, fair.” From the FTC’s discretionary authority to investigate and regulate foreign commerce, the district court thus inferred the Commission’s power to serve its process abroad:
It seems beyond reasonable dispute that the FTC could not faithfully execute its congressional mandate to investigate and enforce laws regulating foreign and domestic commerce if its process could not reach companies incorporated and headquartered abroad which nevertheless have substantial and continuing impacts on the foreign and domestic commerce of the United States.
Since past judicial interpretations of statutory language identical to that in FTC Act section 9 had studiously avoided “reading into the statute artificial limits on the investigatory power of the agencies,” the district court chose to read that section as presumptively authorizing the FTC to deliver its subpoenas over a limitless geographic area.
By implication, the district court also created a presumption in favor of any means of subpoena service which the FTC might decide to employ. In creating this presumption, the court explicitly rejected the notion that any “clear statement” of congressional intent was required to authorize any particular method of foreign service. Not only had Congress previously authorized direct service of process abroad without such a “clear statement,” the court suggested, but there are no “generally applicable principles of international law regarding [permissible or impermissible] methods of service to which Congress might be expected to defer.”
We find the district court’s opinion unconvincing because of its failure to draw two distinctions of critical importance in international law: the first, based on the type of document being served; the second, based on the type of jurisdiction being invoked. By failing to draw these crucial distinctions, the district court failed to give adequate weight to fundamental principles of international law which disfavor methods of extraterritorial subpoena service circumventing official channels of judicial assistance oppose judicial enforcement of investigatory subpoenas abroad, and prohibit the particular manner of subpoena service employed here.
B. The Legitimacy of the FTC’s Method of Service Under International Law
1. The Nature of the Document Served
As one of several targets of an FTC investigation which remains in a preliminary phase, SGPM has neither the status of an accused in a criminal action nor the status of a defendant in a civil action. Although as a result of the agency investigation, SGPM may eventually be named a defendant in a civil action, presently it is merely a third-party witness on notice of its potential status as a party defendant. The FTC’s subpoena duces tecum and accompanying letter ought not, therefore, be viewed merely as a summons giving notice of a complaint initiating a lawsuit against SGPM. Rather, the FTC’s issuance of a subpoena and the district court’s enforcement thereof, represent a classic exercise of compulsory process, intended to secure the personal appearance of and production of documents by an otherwise unwilling witness through threat of judicial sanctions for noncompliance.
The distinction between service of notice and service of compulsory process is a crucial one under principles of both domestic and international law. When an agency serves a party with notice of the pendency of an action, it thereby supplies the recipient with information upon which he may base a decision to act or not. When an agency serves compulsory process upon a third-party witness, regardless of the technique of service employed, it effectively compels that witness to do something and threatens him with sanctions should he choose not to comply. Thus, when the FTC issues and serves a formal complaint upon a respondent, charging him in an adjudicative proceeding with violation of one or more of the statutes it administers, the purpose of service is primarily notice, rather than compulsion Once the respondent is served with a copy of the complaint and the proposed order, he then has the options of meeting with the Commission’s counsel to negotiate a consent order or of proceeding to litigation, the result of which may always be appealed before any cease-and-desist order may issue. Not until the cease- and-desist order becomes final, through affirmance by a court of appeals or the Supreme Court (if taken to that Court by certiorari), will the coercive power of the courts be directly brought to bear upon the respondent.
When a witness is served with compulsory process in the form of an investigatory subpoena, however, the consequences of noncompliance are strikingly different. Should the witness fail to produce material responsive to the subpoena, the full enforcement power of the federal courts may immediately be brought to bear upon him. Disobedience is itself both a statutory crime and an occasion for imposition of a money penalty. The Commission.may seek a judicial order directing compliance or a finding that the respondent is in contempt of court. Summary proceedings may be begun under Fed.R.Civ.P. 81(a)(3), with a finding of contempt the ultimate penalty. In the event of continued noncomplianee, a district court could presumably enforce its order by seizing the noncomplying respondent’s assets wherever they might be found and lawfully attached, by holding the officers and agents of the corporation in contempt, or by otherwise exercising its discretion to punish a potential witness’ recalcitrance. Unlike service of a summons and complaint upon a named defendant, delivery of the FTC’s investigatory subpoena upon a witness carries with it the full array of American judicial power.
The distinction between notice and compulsory process, and the implications of that distinction for permissible modes of service, is well illustrated in the context of civil litigation. Federal Rule of Civil Procedure 4, which governs service of process, is primarily concerned with effectuating notice. To that end, the rule provides for a wide range of alternative methods of service, including registered mail, each designed to ensure the receipt of actual notice of the pendency of the action by the defendant. By contrast, Federal Rule 45(c), governing subpoena service, does not permit any form of mail service, nor does it allow service of the subpoena merely by delivery to a witness’ dwellingplace. Thus, under the Federal Rules, compulsory process may be served upon an unwilling witness only in person. Even within the United States, and even upon a United States citizen, service by registered U.S. mail is never a valid means of delivering compulsory process, although it may be a valid means of serving a summons and a complaint.
When the individual being served is not an American on U.S. soil but a foreign subject on foreign soil, the distinction between the service of notice and the service of compulsory process takes on added significance. When process in the form of summons and complaint is served overseas, the informational nature of that process renders the act of service relatively benign. When compulsory process is served, however,, the act of service itself constitutes an exercise of one nation’s sovereignty within the territory of another sovereign. Such an exercise constitutes a violation of international law. Given its informational nature, service of process from the United States into a foreign country by registered mail may thus be viewed as the least intrusive means of service — i. e., the device which minimizes the imposition upon the local authorities caused by official U.S. government action within the boundaries of the local state. Given the compulsory nature of a subpoena, however, subpoena service by direct mail upon a foreign citizen on foreign soil, without warning to the officials of the local state and without initial request for or prior resort to established channels of international judicial assistance, is perhaps maximally intrusive. Not only does it represent a deliberate bypassing of the official authorities of the local state, it allows the full range of judicial sanctions for noncompliance with an agency subpoena to be triggered merely by a foreign citizen’s unwillingness to comply with directives contained in an ordinary registered letter.
The district court failed to recognize either of these consequences in enforcing the Commission’s subpoena. The district court’s opinion cited a number of state and federal statutes governing judicial service of process abroad to justify the assertion that no clear congressional authorization is necessary before an agency may employ a particular form of subpoena service abroad. Although it is true that Federal Rule of Civil Procedure 4(i)(1)(D) specifically permits service of process abroad “by any form of mail, requiring a signed receipt,” that subprovision, when read together with the other four modes of foreign service of process provided in rule 4(i), underlines rather than obviates the need for judicial sensitivity to foreign territorial sovereignty when scrutinizing particular methods of overseas service. Furthermore, the referenees made in rule 4(i) to alternative official channels for foreign service indicate that the district court erred in construing congressional silence as authorizing regular and unrestrained circumvention of a foreign nation’s judicial authorities In view of the significant sanctions conditionally imposed by the agency’s subpoena and the foreign sensibilities aroused by the mode of delivery used here, the district court’s finding that Congress “intended” the FTC to deliver its compulsory processes solely with the aid of foreign postal authorities seems mistaken.
2. The Nature of the Jurisdiction Invoked by the FTC’s Service
The exercise of jurisdiction by any governmental body in the United States is subject to limitations reflecting principles of international and constitutional law, as well as the strictures of the particular statute governing that body’s conduct. When more than one nation is involved, jurisdictional issues are often elusive. Some jurisdiction which American governmental bodies might exercise consistently with the U.S. Constitution and laws could violate international law, while some exercises of jurisdiction to which international law does not object may violate the Constitution or laws of the United States. The jurisdictional questions posed by this case are peculiarly complex because the jurisdiction of three institutions is at issue: the jurisdiction of the nations involved, under international law, to require production of documents by a French citizen on French soil; the jurisdiction of the federal courts to enforce the agency’s subpoena; and the jurisdiction of the agency to effect service of its subpoena by registered mail.
a. The International Jurisdiction of States
The Restatement (Second) of the Foreign Relations Law of the United States distinguishes two types of jurisdiction of a state: jurisdiction to prescribe and jurisdiction to enforce. Jurisdiction to prescribe signifies a state’s authority to enact laws governing the conduct, relations, status or interests of persons or things, whether by legislation, executive act or order, or administrative rule or regulation. Jurisdiction to enforce, by contrast, describes a state’s authority to compel compliance or impose sanctions for noncompliance with its administrative or judicial orders. International law imposes different limitations upon a state’s exercise of its jurisdiction, depending upon whether the jurisdiction exercised is prescriptive or enforcement jurisdiction.
Traditionally, a state has plenary power to prescribe rules within its own territorial boundaries. Conversely, under traditional principles of absolute territoriality, “[the laws of a nation] can have no force to control the sovereignty or rights of any other nation within its own jurisdiction.” Over time these rigid principles have yielded to certain exceptions. Thus, the current Restatement recognizes that a state has prescriptive jurisdiction not only over conduct, things, status or interests within its territory, but also over conduct outside its territory which has or is intended to have substantial effects within its territory as well as conduct of its nationals even when they are outside its borders.
When an American court orders enforcement of a subpoena requiring the production of documents and threatens penalties for noncompliance with that subpoena, it invokes the enforcement jurisdiction, rather than the prescriptive jurisdiction, of the United States. The two types of jurisdiction are not geographically coextensive —“[a] state having jurisdiction to prescribe a rule of law does not necessarily have jurisdiction to enforce it in all cases,” for unlike a state’s prescriptive jurisdiction, which is not strictly limited by territorial boundaries, enforcement jurisdiction by and large continues to be strictly territorial. The Restatement illustrates this disjunction with the following hypothetical:
X is a national of state A residing in state B. A has jurisdiction to prescribe a rule subjecting X to punishment if he fails to return to A for military service. X does not return. A has no jurisdiction to enforce its rule by action against X in the territory of B.
If a state should enforce a rule which it does not have jurisdiction to enforce, it violates international law, thus giving rise to a claim by the state adversely affected which may then be adjudicated in an appropriate international forum. This would be true even if the state had jurisdiction to prescribe the rule in the first place.
Again, the Restatement provides a clear illustration of how such a claim might arise:
X, a national of state A, kills a man in the territory of state B, and escapes to A. Public officers of B seize X in the territory of A and bring him back to B for trial. B has jurisdiction to prescribe criminal rules dealing with the conduct of X but no jurisdiction to take enforcement action in the territory of A. A has a claim against B under the rule (of international law) stated in this Section.
Similarly, the district court’s enforcement order here violates the above principles of international law — not because the United States lacks jurisdiction to prescribe rules relating to the antitrust matters under investigation, but because the court’s order represents an attempt by the U. S. to exercise its enforcement jurisdiction within foreign territory before its prescriptive jurisdiction over the investigated conduct has been proved to exist.
More than a decade ago, one commentator analyzed a situation identical to the one before us, under principles of international law, in the form of a hypothetical problem:
[Suppose a] court orders aliens to produce documents both located abroad and related to their business activities abroad. The only valid basis of legislative [prescriptive] jurisdiction which could be invoked is the... [so-called] “effects doctrine.” It must be proved that the commercial activities engaged in abroad had a harmful effect on the economy in the forum country. When a court, however, orders the production of documents, it is still in its investigatory stage. The documents are needed to prove the effects. Hence, the order is made before there is a finding as to whether or not effects exist. This means that the order is issued before legislative jurisdiction is proved to exist. Consequently, this would be an exercise of enforcement jurisdiction without legislative jurisdiction and, thus, contrary to international law.
Two separate conferences of the International Law Association have also studied this problem and reached the same conclusion — that the district court’s proposed enforcement of the administrative subpoena, by compelling the conduct in France of French nationals, would violate international law. The Fifty-First Conference, held in Tokoyo, initially concluded that:
It is difficult to find any authority under international law for the issuance of orders compelling the production of documents from abroad. The documents are admittedly located in the territory of another State. To assume jurisdiction over documents located abroad in advance of a finding of effect upon commerce raises the greatest doubts among non-Americans as to the validity of such orders.
The Fifty-Second Conference of the International Law Association, held in Helsinki, went on to draw a clear distinction between the type of production ordered in DeSmedt and the type ordered here:
[T]he basic principle is that the jurisdiction to order production of documents must be commensurate with the limits of the legislative [prescriptive] jurisdiction to regulate the matters to which the documents relate. Thus, the true legal position will be as follows:
(1) Where a State requires a local branch [of a foreign company] to produce documents relating to its own affairs, the demand cannot be resisted merely because the documents are not within the jurisdiction or that they belong to a nonresident alien. A case may arise when the discovery is prohibited by his lex situs [the law of the residence of the alien and the documents]. In such case, each State is acting within its jurisdiction, the one in requiring production and the other in forbidding it, and a conflict arises.
(4) Where, however, a State proceeds against a local branch to enforce the production of documents situate abroad and moreover relating to the affairs or to activities outside the jurisdiction of the head-office of the non-resident alien, the requirement is only lawful if the enforcing State has, in fact, substantive jurisdiction to enquire into those affairs and activities. A State abuses its powers if it uses the process of its courts to reach further than its legislative jurisdiction properly extends.
By this analysis, the district court’s enforcement of the FTC’s subpoenas so served would clearly extend American enforcement jurisdiction beyond the limits of its prescriptive jurisdiction. As such, the district court’s enforcement order violated a fundamental principle of international law.
b. Types of Agency and Federal Court Jurisdiction Distinguished
When a state’s jurisdiction to adjudicate, as opposed to its enforcement or prescriptive jurisdiction, is at issue, questions of service of process, subject matter jurisdiction, and personal jurisdiction are invariably intertwined and hence, frequently confused. Before a federal court may adjudicate a controversy, it must possess jurisdiction over both the subject matter of the action and over the persons whose rights are to be affected by its determination. Both types of jurisdiction are constitutionally limited. The subject matter jurisdiction of the federal courts depends totally upon congressional implementation of a constitutional grant of subject matter jurisdiction. Furthermore, federal courts are subject to limits of personal jurisdiction — a court may not exercise its adjudicatory authority 'over an individual unless it has power to reach him, as circumscribed by the due process clause of the Constitution. Under modern doctrine, due process is not satisfied unless the defendant has sufficient “minimum contacts” with the forum such that the maintenance of a lawsuit against him in that forum does not offend “traditional notions of fair play and substantial justice.” Procedural due process further, requires that a court not exercise its adjudicatory authority over a person, even when it has the power to do so, unless that person has been given adequate notice and opportunity to be heard Thus a court may lack personal jurisdiction over an individual either because it is powerless to affect his rights or because it has failed to give him proper notice that his rights are at issue.
If properly accomplished, service of process confers personal jurisdiction upon a court to adjudicate the rights of a party. When as here, the issue is the propriety of a particular technique of serving a particular type of process, however, neither subject matter jurisdiction nor personal jurisdiction — in either the “power” or the “notice” sense — is directly at issue. The basic inquiry here is thus whether the district court’s enforcement order should be vacated because the manner used by the agency to serve its subpoena was unauthorized by, or in in some other way obnoxious to, domestic or international law.
The district court, however, apparently viewed the central issue in the case as whether or not the power of the FTC to serve process abroad could validly be inferred from its broad investigatory and regulatory jurisdiction. The court read Blackmer v. United States as “unequivocally concluding] that the lawful exercise of jurisdiction confers the authority to effect service.” It then postulated that since the Blackmer Court had upheld Congress’ power expressly to authorize issuance of subpoenas abroad, it must have also approved Congress’ power to secure service of those subpoenas. By delegating its subpoena power to the FTC, the district court concluded, Congress by implication must have delegated to the agency authority to effect subpoena service in any permissible manner.
Such an analysis fundamentally misreads the Supreme Court’s jurisdictional findings in Blackmer, as a review of the history of that case will demonstrate. Upon discovery of the Teapot Dome scandal in 1923, a number of the prominent Americans involved, among them Harry Blackmer, fled to France. To compel their testimony in the subsequent criminal proceedings, Congress passed the Walsh Act authorizing the federal district courts to compel the attendance of American witnesses abroad in connection with domestic criminal proceedings. The statute expressly authorized service of judicial subpoenas outside the United States and specified the means of service to be employed. Pursuant to the Act, the Supreme Court of the District of Columbia issued a subpoena which was served upon Blackmer in the statutorily authorized fashion, requiring Blackmer to appear as a witness at a criminal trial. When Blackmer failed to respond, he was found in contempt of court. The U. S. Supreme Court affirmed the contempt conviction and upheld the statute against a due process attack solely on the grounds that Blackmer “was, and continued to be, a citizen of the United States.”
The Blackmer Court found the statute consistent with both the Constitution and international law for two reasons. With respect to the exercise of the United States’ prescriptive authority over Blackmer, the Court found “there is no question of international law, but solely of the purport of the municipal law which establishes the duties of the citizen in relation to his own government,” namely, the duty “which the citizen owes to his government... to support the administration of justice by attending its courts and giving his testimony whenever he is properly summoned.” With respect to the exercise of the United States’ adjudicative authority over Blackmer, the Court held that the trial court’s authority to give Blackmer constitutionally required notice was a necessary adjunct of its judicial power over him, which in turn was independently based upon the contact provided by his American citizenship.
Upon examination, this case bears little resemblance to Blackmer. In Blackmer, the primary question was one of personal jurisdiction: whether Blackmer’s American citizenship provided a sufficient basis for the court’s assertion of its adjudicatory power over him. The witness did not challenge the subject matter jurisdiction of the court; Congress had by statute explicitly delegated to the court the authority to issue its subpoenas abroad as part of its general jurisdiction to adjudicate. Nor did Blackmer question whether Congress had authorized the particular technique of service employed. In the Walsh Act, Congress had clearly stated its intent to equip courts with a means by which to serve American witnesses abroad to procure their attendance in criminal proceedings. Thus the only question of international law discussed in Blackmer was whether Congress, by enacting the Walsh Act, had exceeded its prescriptive jurisdiction.
Here, by contrast, the primary questions are those of subject matter jurisdiction and technique of service. At the time of service, Congress had explicitly conferred subject matter jurisdiction on the agency to investigate conditions which may affect America’s foreign trade, but it had not explicitly delegated to the agency any authority to serve its subpoenas on foreign citizens abroad. In Blackmer, the congressional intent regarding the proper method of service was unmistakable; here, it is precisely the congressional intent with respect to technique of service which is in dispute.
In direct contradistinction to Blackmer, in this case the personal jurisdiction of both the district court and the agency over the respondent is not at issue: the court has secured personal jurisdiction over the respondent by proper service of process and, misguidedly or not, the respondent has conceded that the documents being sought are subject to the personal jurisdiction of the agency. The relevant issues under international law, therefore, are whether the FTC has properly served its subpoena and whether the court exceeded its enforcement jurisdiction by enforcing that subpoena.
The district court chose to answer the question of the propriety of the FTC’s method of service by reference to the agency’s subject matter jurisdiction. Thus, the district court derived the agency’s specific authority to serve its subpoena abroad in the manner chosen not from any federal statute, but solely by implication from the agency’s general investigatory and regulatory jurisdiction. In view of the prevailing principles of international law opposing that mode of service, we will examine whether such an implication was warranted.
C. The Appropriate Interpretation of Congressional Intent Regarding FTC Subpoena Service
In the Federal Trade Commission Act, Congress empowered the FTC “to prevent persons, partnerships, or corporations... from using unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce.” The Act went on to define commerce to include both interstate and international commerce; furthermore, the Commission was statutorily empowered to gather and compile information and
[t]o investigate, from time to time trade conditions in and with foreign countries where associations, combinations, or practices of manufacturers, merchants or traders, or other conditions, may affect the foreign trade of the United States
Courts have customarily granted broad deference to an agency’s own initial determination of the scope of its investigatory authority. Indeed, there can be little doubt that when the FTC has sought to carry out its statutory mandate within the borders of the United States, the federal courts have chosen to construe its subpoena powers very broadly.
It is essential to bear in mind, however, the distinction between the narrow issue addressed in this case — namely, the validity of the method of subpoena service actually employed by the FTC — and the larger question of the FTC’s authority to investigate both domestic and foreign corporations whose actions have harmful effect on U.S. commerce. Clearly, the FTC has subject matter jurisdiction to investigate and regulate any of respondent’s activities which affect United States commerce. Yet the fact of this broad subject matter jurisdiction in no way warrants the presumption that the FTC can use any technique to serve a subpoena compelling a foreign company residing abroad to produce live witnesses and documents.
Liberal judicial interpretations of agency power are not justified when agency action threatens to have extraterritorial, rather than merely national, impact. In Foley Bros. v. Filardo, the Supreme Court stated:
The canon of construction which teaches that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States... is a valid approach whereby unexpressed congressional intent may be ascertained.
Furthermore, as we noted in our original opinion ordering remand, courts are bound wherever possible to construe strictly federal statutes conferring subject matter jurisdiction on domestic agencies to avoid possible conflicts with contrary principles of international law.
The reverse side of this general canon of statutory construction, of course, is that courts of the United States are nevertheless obligated to give effect to an unambiguous exercise by Congress of its jurisdiction to prescribe even if such an exercise would exceed the limitations imposed by international law. Given the plain intrusion upon French national sovereignty resulting from the FTC’s direct service of its compulsory process abroad and the violation of international law which would result if the district court were to enforce the subpoena here, the only issue is whether the provisions which governed subpoena service within the FTC Act at the time of the challenged service could have been sensibly construed so as to avoid conflict with international law.
In view of the international interests at stake, we suggest that, at the time of service, the best reading of congressional intent with regard to permissible modes of subpoena service was one authorizing the FTC to use all customary and legitimate methods of service of compulsory process commonly employed by American courts and administrative tribun
Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
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songer_summary
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D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Gregory SOLOMON, Patricia Beckwith, Raleigh Brinson, and Earl Jennings, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. LIBERTY COUNTY, FLORIDA, Gene Free, Chairman, Commissioner, Joe Burke, Commissioner, James E. Johnson, Commissioner, J.L. Johnson, Commissioner, John T. Sanders, Commissioner, their successors and agents, all in their official capacities, Defendants-Appellees. Gregory SOLOMON, Patricia Beckwith, Raleigh Brinson, and Earl Jennings, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. LIBERTY COUNTY SCHOOL BOARD, FLORIDA, Ras Hill, Chairman, Joseph Combs, Tommy Duggar, W.L. Potter, Herbert Whittaker, members of the Liberty County School Board, their successors and agents, all in their official capacities, Defendants-Appellees.
No. 87-3406.
United States Court of Appeals, Eleventh Circuit.
April 5, 1990.
David M. Lipman, Lipman & Weisberg, Miami, Fla., for plaintiffs-appellants.
Katherine Inglis Butler, University of South Carolina College of Law, Columbia, S.C., for defendants-appellees.
Before TJOFLAT, Chief Judge, FAY, VANCE , KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK, EDMONDSON, and COX, Circuit Judges, and HILL, Senior Circuit Judge.
Honorable Robert S. Vance, Circuit Judge, was a member of the en banc court which heard oral argument, but due to his death on December 16, 1989, did not participate in the disposition of this case.
Honorable James C. Hill, Senior Circuit Judge, has elected to participate in the consideration and disposition of this case. See 28 U.S.C. § 46(c).
PER CURIAM:
We unanimously vacate the district court’s judgment and remand the case for further proceedings in accordance with the Supreme Court’s pronouncement in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). We hold, as a matter of law, that the appellants have satisfied the three Gingles factors, see post at 1037 (Tjoflat, C.J., specially concurring), 1017 (Kravitch, J., specially concurring), but we are divided on the legal effect of proving those factors. Because we are divided in our interpretation of Gingles and section 2 of the Voting Rights Act, 42 U.S.C. § 1973 (1982), we do not specifically direct the district court on how to proceed on remand. Rather, we instruct the district court to proceed in accordance with Gingles, giving due consideration to the views expressed in Chief Judge Tjoflat’s and Judge Kravitch’s specially concurring opinions. This case is VACATED and REMANDED for further proceedings.
IT IS SO ORDERED.
Question: Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_authoritydecision
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C
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
WALKER et al. v. CITY OF BIRMINGHAM.
No. 249.
Argued March 13-14, 1967.
Decided June 12, 1967.
Jack Greenberg argued the cause for petitioners. With him on the briefs were James M. Nabrit III, Norman C. Amaker, Leroy D. Clark, Charles Stephen Ralston, Arthur D. Shores, Orzell Billingsley, Jr., and Anthony G. Amsterdam.
Earl McBee and J. M. Breckenridge argued the cause for respondent. With them on the brief was William C. Walker.
Louis F. Claiborne, by special leave of Court, argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Solicitor General Marshall and Assistant Attorney General Doar.
Mr. Justice Stewart
delivered the opinion of the Court.
On Wednesday, April 10, 1963, officials of Birmingham, Alabama, filed a bill of complaint in a state circuit court asking for injunctive relief against 139 individuals and two organizations. The bill and accompanying affidavits stated that during the preceding seven days:
“[Respondents [had] sponsored and/or participated in and/or conspired to commit and/or to encourage and/or to participate in certain movements, plans or projects commonly called ‘sit-in’ demonstrations, ‘kneel-in’ demonstrations, mass street parades, trespasses on private property after being warned to leave the premises by the owners of said property, congregating in mobs upon the public streets and other public places, unlawfully picketing private places of business in the City of Birmingham, Alabama; violation of numerous ordinances and statutes of the City of Birmingham and State of Alabama . . . .”
It was alleged that this conduct was “calculated to provoke breaches of the peace,” “threaten [ed] the safety, peace and tranquility of the City,” and placed “an undue burden and strain upon the manpower of the Police Department.”
The bill stated that these infractions of the law were expected to continue and would “lead to further imminent danger to the lives, safety, peace, tranquility and general welfare of the people of the City of Birmingham,” and that the “remedy by law [was] inadequate.” The circuit judge granted a temporary injunction as prayed in the bill, enjoining the petitioners from, among other things, participating in or encouraging mass street parades or mass- processions without a permit as required by a Birmingham ordinance.
Five of the eight petitioners were served with copies of the writ early the next morning. Several hours later four of them held a press conference. There a statement was distributed, declaring their intention to disobey the injunction because it was “raw tyranny under the guise of maintaining law and order.” At this press conference one of the petitioners stated: “That they had respect for the Federal Courts, or Federal Injunctions, but in the past the State Courts had favored local law enforcement, and if the police couldn’t handle it, the mob would.”
That night a meeting took place at which one of the petitioners announced that “[ijnjunction or no injunction we are going to march tomorrow.” The next afternoon, Good Friday, a large crowd gathered in the vicinity of Sixteenth Street and Sixth Avenue North in Birmingham. A group of about 50 or 60 proceeded to parade along the sidewalk while a crowd of 1,000 to 1,500 onlookers stood by, “clapping, and hollering, and [w]hooping.” Some of the crowd followed the marchers and spilled out into the street. At least three of the petitioners participated in this march.
Meetings sponsored by some of the petitioners were held that night and the following night, where calls for volunteers to “walk” and go to jail were made. On Easter Sunday, April 14, a crowd of between 1,500 and 2,000 people congregated in the midafternoon in the vicinity of Seventh Avenue and Eleventh Street North in Birmingham. One of the petitioners was seen organizing members of the crowd in formation. A group of about 50, headed by three other petitioners, started down the sidewalk two abreast. At least one other petitioner was among the marchers. Some 300 or 400 people from among the onlookers followed in a crowd that occupied the entire width of the street and overflowed onto the sidewalks. Violence occurred. Members of the crowd threw rocks that injured a newspaperman and damaged a police motorcycle.
The next day the city officials who had requested the injunction applied to the state circuit court for an order to show cause why the petitioners should not be held in contempt for violating it. At the ensuing hearing the petitioners sought to attack the constitutionality of the injunction on the ground that it was vague and over-broad, and restrained free speech. They also sought to attack the Birmingham parade ordinance upon similar grounds, and upon the further ground that the ordinance had previously been administered in an arbitrary and discriminatory manner.
The circuit judge refused to consider any of these contentions, pointing out that there had been neither a motion to dissolve the injunction, nor an effort to comply with it by applying for a permit from the city commission before engaging in the Good Friday and Easter Sunday parades. Consequently, the court held that the only issues before it were whether it had jurisdiction to issue the temporary injunction, and whether thereafter the petitioners had knowingly violated it. Upon these issues the court found against the petitioners, and imposed upon each of them a sentence of five days in jail and a $50 fine, in accord with an Alabama statute.
The Supreme Court of Alabama affirmed. That court, too, declined to consider the petitioners’ constitutional attacks upon the injunction and the underlying Birmingham parade ordinance:
“It is to be remembered that petitioners are charged with violating a temporary injunction. We are not reviewing a denial of a motion to dissolve or discharge a temporary injunction. Petitioners did not file any motion to vacate the temporary injunction until after the Friday and Sunday parades. Instead, petitioners deliberately defied the order of the court and did engage in and incite others to engage in mass street parades without a permit.
“We hold that the circuit court had the duty and authority, in the first instance, to determine the validity of the ordinance, and, until the decision of the circuit court is reversed for error by orderly review, either by the circuit court or a higher court, the orders of the circuit court based on its decision are to be respected and disobedience of them is contempt of its lawful authority, to be punished. Howat v. State of Kansas, 258 U. S. 181.” 279 Ala. 53, 60, 62-63, 181 So. 2d 493, 500, 502.
Howat v. Kansas, 258 U. S. 181, was decided by this Court almost 50 years ago. That was a case in which people had been punished by a Kansas trial court for refusing to obey an antistrike injunction issued under the state industrial relations act. They had claimed a right to disobey the court’s order upon the ground that the state statute and the injunction based upon it were invalid under the Federal Constitution. The Supreme Court of Kansas had affirmed the judgment, holding that the trial court “had general power to issue injunctions in equity and that, even if its exercise of the power was erroneous, the injunction was not void, and the defendants were pre-eluded from attacking it in this collateral proceeding . . . that, if the injunction was erroneous, jurisdiction was not thereby forfeited, that the error was subject to correction only by the ordinary method of appeal, and disobedience to the order constituted contempt.” 258 U. S., at 189.
This Court, in dismissing the writ of error, not only unanimously accepted but fully approved the validity of the rule of state law upon which the judgment of the Kansas court was grounded:
“An injunction duly issuing out of a court of general jurisdiction with equity powers upon pleadings properly invoking its action, and served upon persons made parties therein and within the jurisdiction, must be obeyed by them however erroneous the action of the court may be, even if the error be in the assumption of the validity of a seeming but void law going to the merits of the case. It is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on its decision are to be respected, and disobedience of them is contempt of its lawful authority, to be punished.” 258 U. S., at 189-190.
The rule of state law accepted and approved in Howat v. Kansas is consistent with the rule of law followed by the federal courts.
In the present case, however, we are asked to hold that this rule of law, upon which the Alabama courts relied, was constitutionally impermissible. We are asked to say that the Constitution compelled Alabama to allow the petitioners to violate this injunction, to organize and engage in these mass street parades and demonstrations, without any previous effort on their part to have the injunction dissolved or modified, or any attempt to secure a parade permit in accordance with its terms. Whatever the limits of Howat v. Kansas, we cannot accept the petitioners’ contentions in the circumstances of this case.
Without question the state court that issued the injunction had, as a court of equity, jurisdiction over the petitioners and over the subject matter of the controversy. And this is not a case where the injunction was transparently invalid or had only a frivolous pretense to validity. We have consistently recognized the strong interest of state and local governments in regulating the use of their streets and other public places. Cox v. New Hampshire, 312 U. S. 569; Kovacs v. Cooper, 336 U. S. 77; Poulos v. New Hampshire, 345 U. S. 395; Adderley v. Florida, 385 U. S. 39. When protest takes the form of mass demonstrations, parades, or picketing on public streets and sidewalks, the free passage of traffic and the prevention of public disorder and violence become important objects of legitimate state concern. As the Court stated, in Cox v. Louisiana, “We emphatically reject the notion . . . that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech.” 379 U. S. 536, 555. And as a unanimous Court stated in Cox v. New Hampshire:
“Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend.” 312 U. S., at 574.
The generality of the language contained in the Birmingham parade ordinance upon which the injunction was based would unquestionably raise substantial constitutional issues concerning some of its provisions. Schneider v. State, 308 U. S. 147; Saia v. New York, 334 U. S. 558; Kunz v. New York, 340 U. S. 290. The petitioners, however, did not even attempt to apply to the Alabama courts for an authoritative construction of the ordinance. Had they done so, those courts might have given the licensing authority granted in the ordinance a narrow and precise scope, as did the New Hampshire courts in Cox v. New Hampshire and Poulos v. New Hampshire, both supra. Cf. Shuttlesworth v. Birmingham, 382 U. S. 87, 91; City of Darlington v. Stanley, 239 S. C. 139, 122 S. E. 2d 207. Here, just as in Cox and Poulos, it could not be assumed that this ordinance was void on its face.
The breadth and vagueness of the injunction itself would also unquestionably be subject to substantial constitutional question. But the way to raise that question was to apply to the Alabama courts to have the injunction modified or dissolved. The injunction in all events clearly prohibited mass parading without a permit, and the evidence shows that the petitioners fully understood that prohibition when they violated it.
The petitioners also claim that they were free to disobey the injunction because the parade ordinance on which it was based had been administered in the past in an arbitrary and discriminatory fashion. In support of this claim they sought to introduce evidence that, a few days before the injunction issued, requests for permits to picket had been made to a member of the city commission. One request had been rudely rebuffed, and this same official had later made clear that he was without power to grant the permit alone, since the issuance of such permits was the responsibility of the entire city commission. Assuming the truth of this proffered evidence, it does not follow that the parade ordinance was void on its face. The petitioners, moreover, did not apply for a permit either to the commission itself or to any commissioner after the injunction issued. Had they done so, and had the permit been refused, it is clear that their claim of arbitrary or discriminatory administration of the ordinance would have been considered by the state circuit court upon a motion to dissolve the injunction.
This case would arise in quite a different constitutional posture if the petitioners, before disobeying the injunction, had challenged it in the Alabama courts, and had been met with delay or frustration of their constitutional claims. But there is no showing that such would have been the fate of a timely motion to modify or dissolve the injunction. There was an interim of two days between the issuance of the injunction and the Good Friday march. The petitioners give absolutely no explanation of why they did not make some application to the state court during that period. The injunction had issued ex parte; if the court had been presented with the petitioners’ contentions, it might well have disolved or at least modified its order in some respects. If it had not done so, Alabama procedure would have provided for an expedited process of appellate review. It cannot be presumed that the Alabama courts would have ignored the petitioners’ constitutional claims. Indeed, these contentions were accepted in another case by an Alabama appellate court that struck down on direct review the conviction under this very ordinance of one of thesé same petitioners.
The rule of law upon which the Alabama courts relied in this case was one firmly established by previous precedents. We do not deal here, therefore, with a situation where a state court has followed a regular past practice of entertaining claims in a given procedural mode, and without notice has abandoned that practice to the detriment of a litigant who finds his claim foreclosed by a novel procedural bar. Barr v. City of Columbia, 378 U. S. 146. This is not a case where a procedural requirement has been sprung upon an unwary litigant when prior practice did not give him fair notice of its existence. Wright v. Georgia, 373 U. S. 284, 291.
The Alabama Supreme Court has apparently never in any criminal contempt case entertained a claim of non-jurisdictional error. In Fields v. City of Fairfield, 273 Ala. 688, 143 So. 2d 177, decided just three years before the present case, the defendants, members of a “White Supremacy” organization who had disobeyed an injunction, sought to challenge the constitutional validity of a permit ordinance upon which the injunction was based. The Supreme Court of Alabama, finding that the trial court had jurisdiction, applied the same rule of law which was followed here:
“As a general rule, an unconstitutional statute is an absolute nullity and may not form the basis of any legal right or legal proceedings, yet until its unconstitutionality has been judicially declared in appropriate proceedings, no person charged with its observance under an order or decree may disregard or violate the order or the decree with immunity from a charge of contempt of court; and he may not raise the question of its unconstitutionality in collateral proceedings on appeal from a judgment of conviction for contempt of the order or decree . . . .” 273 Ala., at 590, 143 So. 2d, at 180.
These precedents clearly put the petitioners on notice that they could not bypass orderly judicial review of the injunction before disobeying it. Any claim that they were entrapped or misled is wholly unfounded, a conclusion confirmed by evidence in the record showing that when the petitioners deliberately violated the injunction they expected to go to jail.
The rule of law that Alabama followed in this case reflects a belief that in the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion. This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the petitioners’ impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.
Affirmed.
APPENDIX A TO OPINION OF THE COURT.
“Temporary Injunction — April 10, 1963.
“A verified Bill of Complaint in the above styled cause having been presented to me on this the 10th of April 1963 at 9:00 O’Clock P. M. in the City of Birmingham, Alabama.
“Upon consideration of said verified Bill of Complaint and the affidavits of Captain G. Y. Evans and Captain George Wall, and the public welfare, peace and safety requiring it, it is hereby considered, ordered, adjudged and decreed that a peremptory or a temporary writ of injunction be and the same is hereby issued in accordance with the prayer of said petition.
“It is therefore ordered, adjudged and decreed by the Court that upon the complainant entering into a good and sufficient bond conditioned as provided by law, in the sum of Twenty five Hundred Dollars ($2500.00), same to be approved by the Register of this Court that the Register issue a peremptory or temporary writ of injunction that the respondents and the others identified in said Bill of Complaint, their agents, members, employees, servants, followers, attorneys, successors and all other persons in active concert or participation with the respondents and all persons having notice of said order from continuing any act hereinabove designated particularly: engaging in, sponsoring, inciting or encouraging mass street parades or mass processions or like demonstrations without a permit, trespass on private property after being warned to leave the premises by the owner or person in possession of said private property, congregating on the street or public places into mobs, and unlawfully picketing business establishments or public buildings in the City of Birmingham, Jefferson County, State of Alabama or performing acts calculated to cause breaches of the peace in the City of Birmingham, Jefferson County, in the State of Alabama or from conspiring to engage in unlawful street parades, unlawful processions, unlawful demonstrations, unlawful boycotts, unlawful trespasses, and unlawful picketing or other like unlawful conduct or from violating the ordinances of the City of Birmingham and the Statutes of the State of Alabama or from doing any acts designed to consummate conspiracies to engage in said unlawful acts of parading, demonstrating, boycotting, trespassing and picketing or other unlawful acts, or from engaging in acts and conduct customarily known as 'kneel-ins’ in churches in violation of the wishes and desires of said churches.
“W. A. Jenkins, Jr., As Circuit Judge of the Tenth Judicial Circuit of Alabama, In Equity Sitting.”
APPENDIX B TO OPINION OF THE COURT.
“In our struggle for freedom we have anchored our faith and hope in the rightness of the Constitution and the moral laws of the universe.
“Again and again the Federal judiciary has made it clear that the priviledges [sic] guaranteed under the First and the Fourteenth Amendments are to [sic] sacred to be trampled upon by the machinery of state government and police power. In the past we have abided by Federal injunctions out of respect for the forthright and consistent leadership that the Federal judiciary has given in establishing the principle of integration as the law of the land.
“However we are now confronted with recalcitrant forces in the Deep South that will use the courts to perpetuate the unjust and illegal system of racial separation.
“Alabama has made clear its determination to defy the law of the land. Most of its public officials, its legislative body and many of its law enforcement agents have openly defied the desegregation decision of the Supreme Court. We would feel morally and legal [sic] responsible to obey the injunction if the courts of Alabama applied equal justice to all of its citizens. This would be sameness made legal. However the ussuance [sic] of this injunction is a blatant of difference made legal.
“Southern law enforcement agencies have demonstrated now and again that they will utilize the force of law to misuse the judicial process.
“This is raw tyranny under the guise of maintaining law and order. We cannot in all good conscience obey such an injunction which is an unjust, undemocratic and unconstitutional misuse of the legal process.
“We do this not out of any desrespect [sic] for the law but out of the highest respect for the law. This is not an attempt to evade or defy the law or engage in chaotic anarchy. Just as in all good conscience we cannot obey unjust laws, neither can we respect the unjust use of the courts.
“We believe in a system of law based on justice and morality. Out of our great love for the Constitution of the U. S. and our desire to purify the judicial system of the state of Alabama, we risk this critical move with an awareness of the possible consequences involved.”
The text of the injunction is reproduced as Appendix A to this opinion.
The Birmingham parade ordinance, § 1159 of the Birmingham City Code, provides that:
“It shall be unlawful to organize or hold, or to assist in organizing or holding, or to take part or participate in, any parade or procession or other public demonstration on the streets or other public ways of the city, unless a permit therefor has been secured from the commission.
“To secure such permit, written application shall be made to the commission, setting forth the probable number of persons, vehicles and animals which will be engaged in such parade, procession or other public demonstration, the purpose for which it is to be held or had, and the streets or other public ways over, along or in which it is desired to have or hold such parade, procession or other public demonstration. The commission shall grant a written permit for such parade, procession or other public demonstration, prescribing the streets or other public ways which may be used therefor, unless in its judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused. It shall be unlawful to use for such purposes any other streets or public ways than those set out in said permit.
“The two preceding paragraphs, however, shall not apply to funeral processions.”
The full statement is reproduced as Appendix B to this opinion.
“The circuit court, or judges thereof when exercising equity jurisdiction and powers may punish for contempt by fine not exceeding fifty dollars, and by imprisonment, not exceeding five days, one or both.” Ala. Code, Tit. 13, § 143. See also id., §§ 4-5, 126.
The circuit court dismissed the contempt proceedings against several individuals on grounds of insufficient evidence.
Those petitioners who participated in the April 11 press conference contend that the circuit court improperly relied on this incident in finding them guilty of contempt, claiming that they were engaged in constitutionally protected free speech. We find no indication that the court considered the incident for any purpose other than the legitimate one of establishing that the participating petitioners’ subsequent violation of the injunction by parading without a permit was willful and deliberate.
The Alabama Supreme Court quashed the conviction of one defendant because of insufficient proof that he knew of the injunction before violating it, and the convictions of two others because there was no showing that they had disobeyed the order. 279 Ala. 53, 64, 181 So. 2d 493, 504.
Two of the petitioners here claim that there was a complete dearth of evidence to establish that they had knowledge of the injunction before violating it, and that their convictions are therefore constitutionally defective under the principle of Thompson v. Louisville, 362 U. S. 199. The Alabama Supreme Court’s recitation of the evidence on this issue, which is supported by the record, plainly shows this claim is without foundation. It is, of course, a familiar doctrine that proof of the elements of criminal contempt may be established by circumstantial evidence. Bullock v. United States, 265 F. 2d 683, cert. denied sub nom. Kasper v. United States, 360 U. S. 932.
Brougham v. Oceanic Steam Navigation Co., 205 F. 857; Trickett v. Kaw Valley Drainage Dist., 25 F. 2d 851, cert. denied, 278 U. S. 624; O’Hearne v. United States, 62 App. D. C. 285, 66 F. 2d 933, cert. denied, 290 U. S. 683; Locke v. United States,, 75 F. 2d 157, cert. denied, 295 U. S. 733; McCann v. New York Stock Exchange, 80 F. 2d 211, cert. denied sub nom. McCann v. Leibell, 299 U. S. 603; McLeod v. Majors, 102 F. 2d 128; Kasper v. Brittain, 245 F. 2d 92, cert. denied, 355 U. S. 834. See also Ex parte Rowland, 104 U. S. 604; In re Ayers, 123 U. S. 443; In re Burras, 136 U. S. 586; United States v. Shipp, 203 U. S. 563; United States v. Mine Workers, 330 U. S. 258.
In In re Green, 369 U. S. 689, the petitioner was convicted of criminal contempt for violating a labor injunction issued by an Ohio court. Relying on the pre-emptive command of the federal labor law, the Court held that the state courts were required to hear Green’s claim that the state court was without jurisdiction to issue the injunction. The petitioner in Green, unlike the petitioners here, had attempted to challenge the validity of the injunction before violating it by promptly applying to the issuing court for an order vacating the injunction. The petitioner in Green had further ofered to prove that the court issuing the injunction had agreed to its violation as an appropriate means of testing its validity.
Ala. Const., Art. 6, § 144; Ala. Code, Tit. 7, §§ 1038-1039.
See n. 1, supra.
Mrs. Lola Hendricks, not a petitioner in this ease, testified that on April 3:
“I went to Mr. Connor’s office, the Commissioner’s office at the City Hall Building. We went up and Commissioner Connor met us at the door. He asked, ‘May I help you?’ I told him, ‘Yes, sir, we came up to apply or see about getting a permit for picketing, parading, demonstrating.’
“I asked Commissioner Connor for the permit, and asked if he could issue the permit, or other persons who would refer me to, persons who would issue a permit. He said, ‘No, you will not get a permit in Birmingham, Alabama to picket. I will picket you over to the City Jail,’ and he repeated that twice.”
Commissioner Connor sent the following telegram to one of the petitioners on April 5:
“Under the provisions of the city code of the City of Birmingham, a permit to picket as requested by you cannot be granted by me individually but is the responsiboity [sic] of the entire commission. I insist that you and your people do not start any picketing on the streets in Birmingham, Alabama.
“Eugene ‘Bull’ Connor, Commissioner of Public Safety.”
In its opinion, that court stated: “The legal and orderly processes of the Court would require the defendants to attack the unreasonable denial of such permit by the Commission of the City of Birmingham through means of a motion to dissolve the injunction at which time this Court would have the opportunity to pass upon the question of whether or not a compliance with the ordinance was attempted and whether or not an arbitrary and capricious denial of such request was made by the Commission of the City of Birmingham. Since this course of conduct was not sought by the defendants, the Court is of the opinion that the validity of its injunction order stands upon its prima facie authority to execute the same.”
Ala. Code, Tit. 7 App., Sup. Ct. Rule 47.
Shuttlesworth v. City of Birmingham, 43 Ala. App. 68, 180 So. 2d 114. The ease is presently pending on certiorari review in the Alabama Supreme Court.
As early as 1904, the Alabama Supreme Court noted that: “An evident distinction is to be made in contempt proceedings for the violation of the writ of injunction, where the writ is improvidently or irregularly issued, and where it is issued without jurisdiction ...” Old Dominion Telegraph Co. v. Powers, 140 Ala. 220, 226, 37 So. 195, 197. See Board of Revenue of Covington County v. Merrill, 193 Ala. 521, 68 So. 971.
Reversed on other grounds, 375 U. S. 248.
The same rule of law was followed in Kasper v. Brittain, 245 F. 2d 92. There, a federal court had ordered the public high school in Clinton, Tennessee, to desegregate. Kasper “arrived from somewhere in the East,” and organized a campaign “to run the Negroes out of the school.” The federal court issued an ex parte restraining order enjoining Kasper from interfering with desegregation. Relying upon the First Amendment, Kasper harangued a crowd “to the effect that although he had been served with the restraining order, it did not mean anything . . . .” His conviction for criminal contempt was affirmed by the Court of Appeals for the Sixth Circuit. That court concluded that “an injunetional order issued by a court must be obeyed,” whatever its seeming invalidity, citing Howat v. Kansas, 258 U. S. 181. This Court denied certiorari, 355 U. S. 834.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_appel1_7_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
Jackie RIMMER, Appellant, v. The FAYETTEVILLE POLICE DEPT., Appellee.
No. 75-1913.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 13, 1977.
Decided Dec. 20, 1977.
John Boddie, Third Year Law Student (Barry Nakell, University of North Carolina School of Law, Chapel Hill, N. C., on brief), for appellant.
Jacob L. Safron, Sp. Deputy Atty. Gen., Raleigh, N. C. (Rufus L. Edmisten, Atty. Gen. of N. C., Raleigh, N. C., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, FIELD, Senior Circuit Judge, and WYZANSKI , Senior District Judge.
For the District of Massachusetts, Sitting by Designation.
HAYNSWORTH, Chief Judge:
Rimmer filed an action under 42 U.S.C.A. § 1983 seeking damages and injunctive relief for an alleged denial of constitutional rights during the course of a trial on criminal charges in a state court. At the time of filing he had not completed exhaustion of his state court remedies, but he did complete exhaustion of those remedies after the district court dismissed this complaint. The state court judgment of conviction, however, still stands unreversed and unvacated. We conclude that the doctrine of collateral estoppel forecloses assertion of Rimmer’s claims and that the district court properly dismissed the complaint.
Rimmer was involved in collisions with two other automobiles in which personal injuries and property damage were suffered. Rimmer fled the scene. A security guard, employed in a nearby establishment, gave chase, but Rimmer evaded him after striking the guard and cutting him with a knife.
Several days later, Rimmer went to the police station to reclaim his automobile. The security guard was present and identified Rimmer as the fleeing driver he had chased. At the criminal trial on the charges of fleeing the scene of the collision without having given aid to the injured, the security guard identified Rimmer as the fleeing motorist. Rimmer had objected to the testimony of the guard as the product of an impermissibly suggestive confrontation, the meeting in the police station. His objection was overruled, and that action of the trial judge was affirmed by the North Carolina Court of Appeals. The Supreme Court of North Carolina denied certiorari.
On the same day Rimmer filed his petition for a writ of certiorari in the Supreme Court of North Carolina, he filed this action under § 1983 seeking damages and a mandatory injunction to require the defendants to seek habeas corpus relief in Rimmer’s behalf. The sole basis of the claim was that he suffered a federal constitutional deprivation when the state court received the identification testimony of the security guard. Though it is clear that he claimed that the conviction was invalid, he did not seek release on a writ of habeas corpus.
I.
Since it was clear that Rimmer was claiming that his conviction was invalid, the district court might have treated the complaint as one for habeas relief as well as a complaint for damages under § 1983, but it did not. In any event, however, the district court is not to be faulted for what it did. At the time of filing and of the prompt dismissal, Rimmer had not exhausted his state remedies, and, on that account, appears to have studiously avoided requesting habeas relief. Moreover, even if the district court had treated the complaint as implicitly requesting such relief, it would have been subject to dismissal because the state court remedies had not then been exhausted.
II.
When an action under the Civil Rights Act calls into question the validity of the state court conviction, it so closely resembles an action for a federal writ of habeas corpus that a requirement of exhaustion of available state remedies may seem reasonable. Some courts have imposed such a requirement where, as here, the judgment in the civil rights case will necessarily determine the validity or invalidity of the state court conviction.
If there is a requirement of exhaustion of available state remedies in such cases, it runs counter to the general intention of the Congress in 1871 in enacting the Civil Rights Act. That Congress was distrustful of state courts in lending protection to civil rights and wished to provide alternative federal remedies. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), and Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), involving challenges to the conduct of prison officials, suggest there is no requirement of exhaustion of state remedies, even when actions bring into question regulations and practices of substantial interest to the state. One might infer from those decisions a likelihood that the Supreme Court would not burden a civil rights action with a state court remedies exhaustion requirement, even in a case such as this where the validity of the state court conviction is called into question.
On the other hand, a much later congress, when enacting what is now 28 U.S.C.A. § 2254, explicitly imposed an exhaustion of state remedies requirement before federal habeas corpus relief may be sought. If a state prisoner is to languish in prison while exhausting his state judicial remedies before he has access to a federal court for habeas relief, there would seem to be little reason not to put him through the same process when he challenges the validity of his state court conviction though he seeks only a money award rather than a writ of habeas corpus.
We need not answer the question of exhaustion of state remedies, however, for here, even if state remedies had been exhausted at the time of filing, the court would be required to hold, as it did, that the issue was precluded by the standing state court conviction.
III.
As noted above, Rimmer fully litigated the question he now tenders in the course of his criminal trial and subsequent appellate review. He consistently lost under circumstances in which his very freedom turned upon the question of a violation of his constitutional rights.
Over eleven years ago in Moore v. United States, 360 F.2d 353 (4th Cir. 1966), we held that a taxpayer convicted of tax fraud could not relitigate the question of his fraud in a subsequent civil suit for the collection of fraud penalties for the same years which were involved in the criminal prosecution. There is nothing new in the concept that full litigation of an issue in a criminal proceeding forecloses subsequent relitigation of the issue in a civil proceeding when resolution of the issue was essential to the conviction.
With one caveat to be mentioned, the fact that Rimmer’s subsequent civil action was brought under the Civil Rights Act warrants no departure from the general rule. We readily adopt the reasoning of the First Circuit in Mastracchio v. Ricci, 498 F.2d 1257 (1974), and of Judge Tjoflat in Part IV of his opinion dissenting in part in Meadows v. Evans, 550 F.2d 345 (5th Cir. 1977). There is no need here to repeat what has been persuasively said there.
Judge Tjoflat wrote for himself and three others in dissent, while Judge Ainsworth, in a separate opinion, expressed agreement with him. The majority of the judges in the Fifth Circuit, however, did not address the question. It simply summarily affirmed a panel decision holding that exhaustion of state remedies was requisite. There is substantial unanimity among the cases holding the rules of issue preclusion to be applicable in civil rights cases. Indeed, the Supreme Court has implied that the “normal principles of res judicata would apply.”
Nor do we see any practical problem in the application of the rule in this context as long as the state prisoner-plaintiff has, or has had, access to a federal forum for the determination of his federal constitutional claims. Most state court prisoners do have such a right of access through 28 U.S.C.A. § 2254, but there are exceptions. Under Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), state court prisoners complaining of searches and seizures would usually have no such access to a federal forum. Others may be unable to meet the “in custody” requirement of § 2254, and never could have met it. Application of the rule of preclusion by reason of a state court conviction in those cases, therefore, may deny a state court prisoner access to a federal forum entirely. Since it was the general intention of the Civil Rights Act to provide access to a federal forum for the adjudication of federal constitutional rights, the Civil Rights Act itself may present a bar to foreclosure of the issue in those cases. This problem has been noted by others, including Judge Goldberg in his separate opinion in Meadows v. Evans, 550 F.2d 345 (5th Cir. 1977); by Judge Coffin in Mastracchio v. Ricci, 498 F.2d 1257, 1260 n. 2 (1st Cir. 1974); by Judge Merhige in Moran v. Mitchell, 354 F.Supp. 86 (E.D.Va. 1973).
When, after exhaustion of state court remedies, a prisoner succeeds in an action under § 2254, he is the ultimate victor. While the state court judgment is neither reversed nor vacated, the prisoner is released and the state court judgment authoritatively declared void. Thereafter, the state court judgment should have no preclu-sive effect. The problem we foresee exists only in those cases in which there is not and never has been a right of access to a federal forum for adjudication of the federal constitutional question determined in the course of the state court proceedings.
We are not met with the problem in this case, however. As the others who have mentioned it, we are content to notice its presence in some future case and to confine our present holding to those cases in which the state prisoner-plaintiff has or, for a reasonable time, had a right of access to a federal forum for the adjudication of his federal claim.
AFFIRMED.
. We use the term “collateral estoppel” to denote the doctrine described as “issue preclusion” in the Restatement (Second) of Judgments § 68, Comment b (Tent. Draft No. 1, 1973), and thus to also include the less common term of “direct estoppel.”
. State v. Rimmer, 25 N.C.App. 637, 214 S.E.2d 225 (1975).
. State v. Rimmer, 288 N.C. 250, 217 S.E.2d 674 (1975).
. Guerro v. Mulhearn, 498 F.2d 1249 (1st Cir. 1974); Mastracchio v. Ricci, 498 F.2d 1257 (1st Cir. 1974); cert, denied, 420 U.S. 909, 95 S.Ct. 828, 42 L.Ed.2d 838 (1975); Fulford v. Klein, 529 F.2d 377 (5th Cir. 1976), aff’d en banc, 550 F.2d 342 (5th Cir. 1977); Meadows v. Evans, 529 F.2d 385 (5th Cir. 1976), aff'd en banc, 550 F.2d 345 (5th Cir. 1977); Watson v. Briscoe, 554 F.2d 650 (5th Cir. 1977).
. See Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972).
. Wolff v. McDonnell, 418 U.S. 539, 554 n. 12, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974).
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
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songer_respond1_1_4
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant.
ELGI HOLDING, INC., Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
No. 586, Docket 74-2002.
United States Court of Appeals, Second Circuit.
Argued Jan. 24, 1975.
Decided Feb. 28, 1975.
F. Bernard Hamsher, Buffalo, N. Y., for appellant.
Richard E. Moot, Buffalo, N. Y. (Ohlin, Damon, Morey, Sawyer & Moot, Buffalo, N. Y., on the brief), for appellee.
Before LUMBARD, HAYS and MULLIGAN, Circuit Judges.
PER CURIAM:
Plaintiff Elgi Holding Inc. [Elgi] appeals from a judgment entered July 3, 1974, in the Western District, John T. Curtin, C. J., following a jury trial and verdict in favor of defendant Insurance Company of North America [INA]. We affirm.
Elgi brought this action against INA in state court for $212,960 alleging that amount was due it under two INA insurance policies that covered an office-warehouse structure in Buffalo which was completely destroyed by fire in the early morning hours- of May 7, 1972. INA removed the case to the district court and alleged a defense of fraud, claiming that Lester Hall, Elgi’s owner, had caused the fire to be set as part of an attempt to obtain the insurance proceeds in order to alleviate his precarious financial situation.
Direct proof of arson is seldom available, so courts have long recognized that it can be established in civil cases by circumstantial evidence. See, e. g., Fratto v. Northern Insurance Co., 242 F.Supp. 262, 271 (W.D.Pa.1965), affd., 359 F.2d 842 (3d Cir. 1966). Here there was sufficient evidence to sustain the jury’s verdict. INA offered two expert witnesses to explain the cause of the fire. William Alvine, a professional fire analyst, testified that his observations of the scene led him to conclude that the fire was a low-burning fire that had spread rapidly throughout the structure. He thought that the fire had been accelerated by the use of a flammable substance. He also stated that his conclusions were verified by a laboratory report which indicated the presence of gasoline in debris taken from the burned building. John F. Fitch, a fire investigator for the Buffalo Fire Department, also testified that the fire had rapidly engulfed the building, probably through the use of an accelerant. Elgi’s counter evidence established only that no criminal charges of arson had been brought.
INA also offered evidence as to Hall’s financial status. It showed that a bank had threatened to foreclose the mortgage on the warehouse immediately pri- or to the fire because Hall had missed eight consecutive payments (totaling in excess of $9,000). In addition, INA showed that Hall had obtained $33,000 in income continuation insurance on the building immediately prior to the fire (May 3), that he had written many bad checks in the four months preceding the fire and that he had outstanding judgments and liens against him at the time of the fire.
Hall denied that he had any role in the fire. However, a reading of the transcript discloses that Hall’s testimony was often contradicted by other evidence. Thus, the jury could choose to disbelieve his denial of complicity in the fire.
We think the above evidence, which established that the fire was incendiary in nature and that Hall had a motive to cause it, is such that we cannot say that reasonable men could not conclude Hall caused the fire. Consequently, the jury’s verdict should stand. See Hanover Fire Ins. Co. v. Argo, 251 F.2d 80, 82 (5th Cir. 1957); Fire Assn. v. Oneida County Macaroni Co., 294 F. 633, 635-37 (2d Cir. 1923) (upholding jury verdicts).
Elgi argues that the trial court improperly admitted evidence concerning Hall’s financial difficulties after the fire. Since Hall had attempted to establish himself as a well-to-do and successful businessman at the time of the trial, this evidence was properly admitted as relevant to the question of motive and to attack Hall’s credibility regarding his financial situation.
Elgi argues next that the court erred in allowing Alvine to refer to the lab report because the report was not a business record and because the person who conducted the tests was not available for cross-examination. While Elgi may be technically correct in its claim of error, see C. McCormick, Evidence § 15 (2d ed. 1972); see, however, Fed.R.Ev. 703 (effective July 1, 1975), we are not persuaded to reverse the jury’s verdict in this civil case on this ground as Elgi was not prejudiced by the reference to the report.
Elgi had the opportunity to (and did) attack the validity of the tests performed by the laboratory through cross-examination of Alvine and introduction of a chemist’s testimony in its rebuttal case. Moreover, Alvine testified that his opinion that the fire had been accelerated by use of a flammable liquid was not based on the report but rather on his examination of the burned premises. The report only offered verification for the opinion he had already reached independently. Investigator Fitch had arrived at a conclusion similar to Alvine’s after his inspection of the premises. The only witness called by Elgi who discussed the cause of the fire indicated that its origin was suspicious. In light of the considerable evidence that the fire was incendiary, and the lack of any evidence suggesting an accidental cause, the reference by Alvine to the lab report cannot be said to have prejudiced Elgi.
Finally, Elgi argues that it was prejudiced because the trial judge allowed it only ten minutes to present its rebuttal witness. We do not agree. It appears from the record that the judge’s statement was only a general exhortation to the lawyers to finish the case quickly as it was late on a Friday afternoon. In any event, Elgi’s counsel made no protest and a reading of the record indicates that he had ample time in which to question his witness, who was called solely for the purpose of attacking the scientific validity of the procedures followed by the laboratory whose report had been referred to by Alvine.
Affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant?
A. bank
B. insurance
C. savings and loan
D. credit union
E. other pension fund
F. other financial institution or investment company
G. unclear
Answer:
|
songer_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.
THERM-O-PROOF INSULATION CO. v. SLAYTER & CO.
No. 5399.
Circuit Court of Appeals, Seventh Circuit.
Dec. 21, 1935.
George W. Hansen, Sidney Neuman, and Joseph F. Devereux, Jr., all of Chicago, Ill., for appellant.
Charles B. Belknap, of Toledo, Ohio, and Lee J. Gary and Albert G. McCaleb, both of Chicago, Ill., for appellee.
Before EVANS and SPARKS, Circuit Judges, and BRIGGLE, District Judge.
This suit was brought to enjoin infringement of appellee’s patent, No. 1,728,-837, applied for September 30, 1927, and issued September 17, 1929, covering “Method of Heat Insulating.” The court found for appellee, and an interlocutory, injunctional, and accounting decree was entered. Defendant appealed.
EVANS, Circuit Judge.
Patentee was most unfortunate in wording his claim. He entitled his patent “Method of Heat Insulating.” His first claim starts with these words: “The method of building a wall whereby to increase the insulating and fire resisting properties thereof.” From these two statements it is assumed that his was a process patent. The first paragraph of the specifications confirms this conclusion, for the inventor there says:
“This invention relates to method for heat insulating buildings and the like and refers more particularly to an improved process by means of which houses or other buildings already standing can be conveniently, economically and efficiently heat insulated although the invention in' certain of its broader aspects is not limited to the heat insulation of buildings already constructed.”
His second paragraph injects doubt and confusion into the study for there he says:
“Another object of the invention is to provide material which can be economically produced and applied in the walls of the building ip the carrying out of the method and which in addition to its heat insulation qualities will be fire-resisting.”
This product was not the subject of the claim which was allowed. All product claims were disallowed. In the license contract which appellee offered in evidence in order to show extensive use, it is significant, however, that the royalty was on the product.
When the claim is carefully analyzed, we find it to be a hybrid. It begins as a process and ends like a product claim. We quote and analyze the single claim of the patent:
“What I claim as my invention is: The method of building a wall whereby to increase the insulating and fire resisting properties thereof without undue added weight, which comprises utilizing spaced apart walls of a building previously constructed as a form for receiving heat insulating material, (1) providing openings to afford access to the air spaces between said spaced apart walls, (2) inserting the outlet end of a conduit through said openings, (3) and forcing through the said conduit a comminuted heat insulating material, said material being of sufficiently light weight and devoid of free moisture content of sufficient amount to cause bulging or other injurious effects upon the ■ exposed surfaces of said walls.” (The numerals are inserted by the court.)
We are not without sympathy for counsel who is called upon to determine whether a process or a product claim best protects his client’s discoveries. It is at times difficult for him as it is for us to decide this question. It is unfortunate that form should play any substantial part in determining the validity of a patent monopoly covering a patentable discovery.
In solving the problem it would seem safe for courts to assume that patent applications should be as liberally construed as pleadings, and we should endeavor to give effect to the pleader’s good faith efforts to describe his discovery and secure protection therefor. Courts cannot, of course, add what is omitted or subtract that which is clearly inserted in the claim. In many cases it has been observed that what is not claimed is dedicated to the public. It would seem, however, a violent assumption to so infer even an implied dedication. The same conclusion is reached, however,' but by better reasoning, by holding that the claim is a contract between the Government and the patentee and bespeaks the agreement of the parties. Accepting as we do the view that additions and subtractions may not he made, we still believe a claim, like the one before us, may be construed so as to give effect to the efforts of the inventor and his solicitor. It may result in narrowing the claim, but we think it unfair to give it a construction which would result in its instant annihilation.
Undoubtedly, Slayter believed he had made a discovery and tried to describe it. Approaching the patent from this angle, we can view the claim as a process claim and restrict the last step to blowing the comminuted heat insulating material therein specifically described and it only. While novelty, if any there be, resides in the last step — the blowing of this particular material — yet validity will be accorded it, if we can find patentable originality in this step.
Turning to the claim as analyzed, the first words ending with “weight” merely describe the art — patentee’s field of operation. The next clause is not so readily reconciled grammatically. We assume “which” is attached to the word “method.” Again, the draftsman was describing the fidd of his operation — his art. Neither clause describes a step in the patented, or any, process. The next clause “providing openings to afford access to the air spaces between said spaced apart walls” is the first step of this process claim. It was old, well known, commonly used, and never could evidence more than mechanical skill. The second step, “inserting the outlet end of a conduit through said openings,” was likewise anything but novel. The last step, “forcing through the said conduit a comminuted heat insulating material,” was likewise old.
There was not a sign of inventive genius in providing an opening in a wall, or in inserting in said opening the outlet end of a conduit (a nozzle), or in blowing or forcing "material through a conduit. Prior art need not be cited, but, if necessary, it is in the record. See, also, Powers-Kennedy Contracting Corp. v. Concrete Mixing, etc., Co., 282 U.S. 175, 51 S.Ct. 95, 75 L.Ed. 278.
The only novelty, which may be asserted for this claim is in forcing the specified materials described as follows: “Said material being of sufficiently light weight and devoid of free moisture content of sufficient amount to cause bulging or other injurious effects upon the exposed surfaces of said walls.”
“Comminuted material” is defined in the specifications as follows: “By the term ‘comminuted material’ is of course included various degrees of fineness but does not mean that the material is reduced to a powdered condition. In fact the particles are preferably of sufficient size to give a large body for the amount of weight.”
Unfortunately for the validity of the claim, greater indefiniteness and more vagueness could hardly be found. It is so worded (accidentally or intentionally) as to catch an alleged infringer coming or going. But, fearful that the description be not sufficiently elastic, Slayter further says in his specifications: “While I have described one material and one method of applying it I do not wish to limit the method to the particular material mentioned, except as ultimately set forth in the claim.”
Can we, in these words, find a product sufficiently described to permit us to say it is patentably novel? “Comminuted heat insulating material” is a broad and comprehensive term. “Heat insulating material” needs no definition. “Comminuted” is also pretty well understood. It means “reduced to minute particles,” “pulverized.” The prior art is loaded with descriptions of “comminuted heat insulating material.” The patent originally had a claim covering the product which was rejected, the examiner saying:
“ * * * The method claimed is not a ‘method of heat insulating a building,’ but is in reality a part of the process of building a heat insulating wall. The material is in such cases forced into the air spaces in the walls of a building. The process, if properly defined, is not considered a patentable one, aside from the composition, as the only method of using such compositions in this connection is placing or ‘forcing’ it into the space in question.
“Claims 1 to 7 are rejected as unpatentable over Orlovsky or O’Hara, which indicates the use of a similar composition in the same manner.
“Claims 8 to 11 are rejected as unpatentable over 'Orlovsky. Orlovsky describes a mixture of any available organic fibrous material, with lime, gypsum (plaster of Paris) and a fungicide (potassium permanganate). In view of this art, no invention is seen in the substitution of any available fibrous materials such as corn cobs, paper, etc., in place of Orlovsky sawdust etc.” '
We, therefore, must find the words of limitation, if at all, in the succeeding ■clauses. The material is described “as being sufficiently light weight and devoid of free moisture content of sufficient amount to cause bulging or other injurious effects upon the exposed surfaces of said walls.” Required specificity must be found in the adverb “sufficiently.” It cannot be that the clause “sufficiently light weight to cause bulging or other serious defects” informs us of the kind of material one must use to comply with .this step of the claim. Some walls will bulge easier than others depending on the material and construction. We recognize that a claimant may describe a product in terms of results, but to say that the material should be sufficiently light as to prevent bulging of walls is too general and vague to secure protection. Also, it is said, the material must be “devoid of free moisture content of sufficient amount to cause bulging or other injurious effects. * * * ” The term “devoid of free moisture content of sufficient amount” is unfortunate. We assume that the words used are equivalent in meaning to “sufficiently devoid of free moisture so as to avoid bulging,” etc.
Let us assume that weight and dryness of material are important factors in the material which is.to be blown. How much dryness and how much weight would be “sufficient”? How can another comply with or avoid this step? Obviously, the material strength of the walls would be vital. Perhaps, the ease with whiqh the blowing might take place would be affected by the weight of the material. Further discussion would be of no avail. Our conclusion is that the language is too general to warrant protection.
Moreover, such material was refused protection by the patent office when the product claims were eliminated.
Likewise, the steps outside of this last one were anticipated by this disclosure of Balduf.
In the Balduf patent (prior art) the following appears in the specifications:
“This material may also be blown in place as through a hose, for example in covering a ceiling which has a floor above it, the hose being introduced between the floor and the ceiling and the fibrous material discharged therefrom. In such case the layer formed may be sprinkled with a thin stream or spray of water which will form the desired crust.”
In Powers-Kennedy Contracting Corp. v. Concrete, etc., Co., 282 U.S. 175, 180, 51 S.Ct. 95, 97, 75 L.Ed. 278, the court, speaking of a patent issued in 1915, said:
“The idea of moving fluids and solids through a pipe by air pressure or other fluid pressure is old, and was well known at the time of the alleged invention. Both granular and plastic materials had been so moved by devices quite similar to that of the patent. These covered a wide range, from lift-pumps for sand and sulphur, to apparatus for transporting muck, spoil, grout, and concrete. * * *
“ ‘The observations of common experience in the mechanical arts would lead one to expect that, once the feasibility of using “wet” concrete in building operations was established, the mechanical skill of those familiar with engineering and building problems would seek to- make use of known methods and . appliances for the convenient handling of this new building material.’
“Here it appears that the use of compressed air for conveyance of granular and plastic materials had long been known and practised; so that the cited case is clear authority against invention in the instant cases.”
The product claims in the Balduf patent covered “a new insulating material which is easily handled as a dry filling agent” and which was blown into the .space between the walls' of the building. Its claim 1 describes “a dry, fluffy insulating composition comprising shredded paper and comminuted plaster in substantially the proportions that these materials exist in a plasterboard having a plaster core and paper covering sheets.”
Another claim covered “comminuted wallboards having paper covers and hydrated gypsum cores, so that the composition is a light, fluffy mixture of partially hydrated gypsum and fibers.”
An earlier German patent issued to Orlovsky described the material for filling empty spaces as follows:
“A filling material for use between walls and the like, consisting of com-minuted peat, sawdust, and the like, thereby characterized, that the said organic materials are mixed with gypsum and powdered lime that has been slaked with potassium permanganate solution.”
Zahn obtained a patent in 1904 on material which could he used to blow into the hollow walls of the building and thereby avoid disastrous fires, as follows: “A filling composed principally of infusorial or diatomaceous earth.” For it he claims added virtues as follows:
“Said diatomaceous earth is highly refractory, and when put into the wall, floor, or ceiling, as stated, prevents any draft through the same. This prevents the fire from passing from one part of the building to another through the usual hollow portions of the walls or floors. The filling also affords protection against rats, mice, and vermin, as it is very light and powdery and when disintegrated serves to prevent the rodents or other vermin from making runways.”
Still other material had been described and used before Slayter entered the field. While he did not limit himself thereto, Slayter described a material that might be used as follows: “finely comminuted
corn cobs and paper mixed with plaster of Paris and zinc chloride and sufficient moisture to permit the handling of the material without unnecessary dust.”
Confronted by such prior art dealing with the material to be blown, the vagueness and impossibility of the language of the claims which described the material to be blown, is emphasized.
Appellee has asserted extensive use of the patent to support its claim of invention. While we know of no better support for the validity of claims of a patent than wide-spread, generous support by those skilled in the art, or substantial tribute paid by others for a license, yet we are not satisfied that in the instant case there was the generous recognition of this invention which appellee asserts. To assert that licenses have been taken by various parties is not informative. The licenses speak for themselves. They are the best evidence of their contents. If there be any merit in recognition of the patentee as an inventor through the issuance of licenses, the court must make that deduction from the license rather than from licensor’s conclusions respecting the license.
In this case one license was presented to the court. It called for the fixation of a price for the product, and said licensee was permitted to designate others as sub-licensees. True, there was a license to use this patent, but if there was any possible profit from the license, it arose out of the sale of the non-patented product. Even that clause was so drawn that it is impossible to say that the licensee called for the payment of a tribute to the patentee for the use of the patent. Extensive use, as before stated, is an important factor in determining doubtful cases, but extensive use cannot be established by a witness giving oral testimony as to conclusions respecting licensees where the licenses are not in evidence. It may be that a license is granted in consideration of a cross-license, and the extensive use is in no way attributable to the alleged invention covered by the claim sued on.
Moreover, in the instant case the doubt which must exist before extensive use becomes a factor is not present.
The decree is reversed with directions to dismiss the complaint.
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_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
John M. BENNETT, Appellant, v. Lawrence C. GUTMAN, Trustee and Evans-Johnson Company, purchaser, Appellees.
No. 285, Docket 27386.
United States Court of Appeals Second Circuit.
Argued March 19, 1963.
Decided March 25, 1963.
Jacob W. Friedman, New York City, for appellant.
Lawrence C. Gutman, New York City (Leo H. Raines, New York City, on the brief), for appellees.
Before LUMBARD, Chief Judge, and CLARK and MARSHALL, Circuit Judges.
LUMBARD, Chief Judge.
These consolidated appeals from four orders of the United States Court for the Southern District of New York question proceedings of that court in the bankruptcy of Leatherhide Industries, Inc. Leatherhide and/or John M. Bennett, who is its president and also one of its creditors, are denominated the appellants, but for all practical purposes Bennett alone is the party behind these appeals. The record indicates that Bennett, supported in a few instances by an attorney representing a number of creditors but not the Committee of Creditors, was also the primary, if not quite the sole, source of opposition throughout the protracted proceedings below. We affirm each of the orders in question.
The appellants challenge first the dismissal by Judge Bryan of a motion to review Referee Herzog’s order of August 29, 1958, adjudicating Leatherhide a bankrupt. Judge Bryan held that the matter had already been litigated and settled by an order of Judge Bicks dated September 8, 1959. Memorandum decision of Judge Bryan, June 15, 1960. No appeal was ever taken from Judge Bicks’ order. What the appellants sought to do by their motion before Judge Bryan was simply to disregard the prior order. The motion was properly dismissed.
The second order under attack is an order of Judge Cashin, dated August 8, 1960, which affirmed two orders of Referee Stephenson. The first approved a compromise of disputed claims between the trustee in bankruptcy and the Evans-Johnson Company, a claimant against the bankrupt estate. Order dated November 13, 1959. The second denied leave to file out of time a petition to review the first order. Opinion dated May 3, 1960. After entry of the referee’s first order, Bennett made a series of abortive motions to secure review of it. His primary objection to the order was that the assets transferred to Evans-Johnson pursuant to the compromise were worth much more than Evans-Johnson paid for them in cash and the settlement of claims; the record leaves little doubt that Bennett’s valuation of the transferred assets was, to say the least, highly exaggerated. In any event, although the court apprised him in plenty of time of the means by which he could secure review, see Bankruptcy Act, § 39, sub. c, 11 U.S.C. § 67, sub. c, he failed to adopt these means and continued to pursue his own course, apparently indifferent to both the statutes and judicial advice. Nevertheless, Referee Stephenson accorded him a full hearing before denying leave to file a petition for review out of time. Denial was based both on a failure to show good cause for the delay in filing the petition and on a failure to show a probability of error in the original order approving the compromise. See In re Advocate, 140 F.2d 783 (2 Cir., 1944). Judge Cashin agreed with the referee as to both points. We do also.
The appellants attack next an order of Judge Levet, dated December 10, 1959, which dismissed a petition of Leatherhide for reorganization under Chapter X of the Bankruptcy Act. This was the second such petition to be filed. See Leatherhide Industries, Inc. v. Lieberman, 268 F.2d 206 (2 Cir.), cert. denied, 361 U.S. 896, 80 S.Ct. 200, 4 L.Ed.2d 152 (1959). As the appellants have conceded, reorganization could not be carried through unless the bankrupt retained the assets which were transferred to the Evans-Johnson Company by the compromise referred to above. Since we have affirmed the order approving the compromise, there is no need to consider further the appeal from Judge Levet’s order.
Finally, the appellants seek reversal of an order of Judge Cashin, dated October 26, 1961, in which he reaffirmed his order of August 8,1960. This order was in response to appellants’ motion for an order directing the referee to certify additional papers to the court and for reconsideration on the basis of such papers of the referee’s order denying leave to file a belated petition for review of the order of November 13, 1959. One motion for the certification of additional papers having already been granted in its entirety, Judge Cashin found that there was no justification for the belated attempt to have other papers certified. We agree. In other respects, this order duplicates Judge Cashin’s order of August 8, 1960, which we have affirmed above.
All of the orders under review are affirmed.
. At the time in question, this section provided :
“A person aggrieved by an order of a referee may, within ten days after the entry thereof, or within such extended time as the court may for cause shown allow, file with the referee a petition for review of such order by a judge * *
By Act of July 14, 1960, 74 Stat. 528, this was amended to provide that an extension of time beyond the ten-day period may be granted only if a petition for an extension of time is filed within the ten-day period. Unless a petition for review or petition for an extension of time within which to file a petition for review is filed within the ten-day period, the order of the referee becomes final.
. The history of these maneuvers is set out in Referee Stephenson’s opinion of May 3, 1960, and also in Judge Cashin’s opinion of October 26, 1961, as to which see below.
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:
|
sc_decisiondirection
|
B
|
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.
WILMETTE PARK DISTRICT v. CAMPBELL, COLLECTOR OF INTERNAL REVENUE.
No. 75.
Argued November 15-16, 1949.
Decided December 12, 1949.
Henry J. Brandt argued the cause for petitioner. With him on the brief was Gilbert H. Hennessey, Jr. Edward R. Johnston was also of counsel.
Lee A. Jackson argued the cause for respondent. With him on the brief were Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack, Helen Goodner and Melva M. Graney.
Mr. Justice Clark
delivered the opinion of the Court.
Section 1700 (a) (1) of the Internal Revenue Code, as amended, provides for the imposition, except as to certain classes of persons under circumstances not important here, of “A tax of 1 cent for each 10 cents or fraction thereof of the amount paid for admission to any place, including admission by season ticket or subscription.” Paragraph (2) of the subsection declares that the tax “shall be paid by the person paying for such admission.” And § 1715 requires that “Every person receiving any payments for admission . . . subject to the tax imposed by section 1700 . . . shall collect the amount thereof from the person making such payments.”
This suit, brought to recover penalties paid by petitioner for noncollection of federal admissions tax, presents two questions for determination: Whether § 1700 (a) is applicable to paid admittances to a bathing beach operated without purpose of gain by a local park district of Illinois; and, if the Code provision is to be so interpreted, whether the imposition of admissions tax in connection with such state activity is within the constitutional power of Congress.
Petitioner is Wilmette Park' District, a body politic and corporate located within the Village of Wilmette, Cook County, Illinois. Organized and administered pursuant to Illinois statutes, the District includes within its jurisdiction four park areas. The largest, Washington Park, extends for approximately three-fourths of a mile along Lake Michigan and was acquired partly by grant from the State of Illinois, partly by purchase, and partly by exercise of the power of eminent domain. At the north end of Washington Park, petitioner has operated a public bathing beach during the summer months for many years, under authority conferred by the Illinois Legislature. The beach has been used primarily by residents of the District, but also has been open to nonresidents.
Among the facilities which the District provided at the beach during the period under review were a bath house, automobile parking area, life-saving equipment, flood lighting, drinking fountains, showers, spectator benches, bicycle racks, first aid, and supplies. The operation and maintenance of the area and its various services were solely by the District, which employed the necessary personnel.
Petitioner charged all persons for admittance to the beach. Its charges were of two types: a daily fee of fifty cents on weekdays and one dollar on Saturdays, Sundays and holidays, for which no ticket was issued; and a flat rate for a season ticket which could be purchased on an individual or family basis. These charges were made to cover the expense of maintenance and operation of the beach and of some capital improvements. Over the years the charges were intended merely to approximate these costs and not to produce net income or profit to petitioner; during the period 1940-1944 the accounts of the beach, maintained on a cash receipts and disbursements basis, reflected an excess of receipts over expenditures of $42.11.
In July 1941 the Collector notified petitioner to collect a tax of 10 per cent on all tickets to the beach sold on or after July 25 of that year. Petitioner had not previously collected such taxes, and it refused to do so after the Collector’s notice. Subsequently the Commissioner under § 1718 of the Code assessed over petitioner’s protest penalties in the amount of the tax which the Commissioner claimed should have been collected under § 1700 (a) from July 25, 1941 through 1945, plus interest and sums due under § 3655 (b) of the Code for failure to pay the tax on demand. These penalties amounted to $6,139.93 and were paid out of petitioner’s general funds raised by property taxes.
Petitioner filed timely claims for refund which were rejected, and in 1946 brought this suit against the Collector. The District Court entered judgment for petitioner. 76 F. Supp. 924. The Court of Appeals for the Seventh Circuit reversed. 172 F. 2d 885. Because the questions presented have importance in the administration of the admissions tax sections of the Code, we granted certiorari. 337 U. S. 937.
First. The Government raises no issue as to petitioner’s standing to sue for refund. As recovery is here sought of penalties paid from petitioner’s general revenue fund after its failure to collect the tax, we deem petitioner’s financial interest clearly sufficient.
Second. Section 1700 (a) is applicable if the charge made by petitioner for admittance to the beach was, within the meaning of the statutory language, an “amount paid for admission to any place.”
The words of the provision when taken in their ordinary and familiar meaning reflect a legislative purpose of comprehensive application. By its terms the section embraces every payment made in order to secure admittance to a specific location. And this purpose of broad application is not less certain because of anything in the legislative history of the initial adoption of that language. In this view it is unnecessary to consider whether petitioner’s beach area can be distinguished from a “spectator entertainment,” for we are unable to accept petitioner’s argument that Congress intended in § 1700 (a) to tax only admissions to such events.
We think it clear that a beach area may be a “place” in the sense of § 1700 (a) (1). Petitioner’s beach park, including the adjacent shoal waters, was policed and lighted; the land area was defined, and entrance was through gates. A payment was made by patrons of the beach as the condition of admittance to a specific area with definite physical limits. Thus the fee which petitioner charged was “paid for admission” to a “place” as those terms are used in § 1700 (a) (1).
We cannot agree with petitioner’s suggestion that Congress intended to exempt from tax admissions to any activity not conducted for gain. Section 1701 of the Code did allow certain exemptions prior to their termination on October 1, 1941 pursuant to the Revenue Act of 1941, § 541 (b). 55 Stat. 687, 710. In § 1701 Congress exempted admissions to certain classes of events and admissions all the proceeds of which inured exclusively to the benefit of designated classes of persons or organizations. But since Congress did not exempt all activities not for profit as it readily might have done, it appears that admissions to such activities are not for that reason outside the admissions tax scheme. Exmoor Country Club v. United States, 119 F. 2d 961 (C. A. 7th Cir., 1941).
Nor is there greater force in petitioner’s contention that the admissions tax was not intended to apply in the case of activities conducted by a municipality. In interpreting federal revenue measures expressed in terms of general application, this Court has ordinarily found them operative in the case of state activities even though States were not expressly indicated as subjects of tax. See concurring opinion in New York v. United States, 326 U. S. 572, 584 and n. 3 (1946). And in Allen v. Regents of the Univer sity System of Georgia, 304 U. S. 439 (1938), it was decided that the admissions tax law was applicable in connection with activities carried on by an agency of a State, although it does not appear that the issue of legislative purpose was there disputed. However, we are unable to discover that there has been any design to exempt admissions to municipally conducted activities. We regard the interpretative issue as controlled by a long-continued administrative construction, expressly denying such exemption, which has been followed by repeated reenactment of the relevant language without change. Cf. Helvering v. Winmill, 305 U. S. 79 (1938).
Finally, § 1700 (a) (1) is not rendered inapplicable because beach patrons make use of a beach and its facilities, thus affording characterization of the admission fee as a “use charge.” New if any admissions taxable under § 1700 (a) are not accompanied by a use of the property or equipment to which the admittee’s license extends. Although table accommodations for which a charge is made are usually thought of as objects of a patron’s use, yet Congress in § 1704 of the Code has declared that for purposes of the admissions tax law a charge for their use must be treated as a charge for admission and not as a rental charge. A similar result must obtain when payment is prerequisite, as it was at petitioner’s beach, to both admission to and use of a specific area. Chimney Rock Co. v. United States, 63 Ct. Cl. 660 (1927), cert. denied, 275 U. S. 552 (1927); Twin Falls Natatorium v. United States, 22 F. 2d 308 (D. Idaho, 1927).
The trial court, in allowing judgment for petitioner in view of the use made of the beach, considered the fee a “use tax.” But if there is no tax exemption for admissions to a municipally conducted activity, then a municipality may not escape tax by claiming that its admission fee is a “use tax” when a similar private business could not advance such claim. Nor does it matter that petitioner’s authority to make any charge to beach patrons is derived from a statute which contemplates a charge for “use.” Ill. Rev. Stat., c. 105, § 8-7d (1947). The application of the federal admissions tax statute is not controlled by the characterization of petitioner’s fee by local law. Cf. Morgan v. Commissioner, 309 U. S. 78, 81 (1940).
We conclude that § 1700 (a) is applicable.
Third. The constitutionality of admissions tax levied in connection with an activity of a state instrumentality was before this Court in Allen v. Regents of the University System of Georgia, 304 U. S. 439 (1938). We there found no constitutional inhibition against a nondiscriminatory imposition of such tax on admissions to an athletic exhibition conducted in connection with a state educational administration and in the performance of a governmental function.
The Allen decision followed soon after Helvering v. Gerhardt, 304 U. S. 405 (1938), which declared two principles limiting state immunity from federal taxation. Id. at 419. The first of these, invoked in the Allen decision, was dependent upon the nature of the function being performed by the state agency and excluded from immunity such activities as might be thought not essential for the preservation of state government. We need not consider here the applicability of that doctrine, for the petitioner’s assertion of immunity must be rejected on the second restrictive principle reaffirmed in the Gerhardt decision. This “principle, exemplified by those cases where the tax laid upon individuals affects the state only as the burden is passed on to it by the taxpayer, forbids recognition of the immunity when the burden on the state is so speculative and uncertain that if allowed it would restrict the federal taxing power without affording any corresponding tangible protection to the state government.” 304 U. S. at 419-420. According to this principle, the State “is not necessarily protected from a tax which well may be substantially or entirely absorbed by private persons.” Id. at 420.
While the Allen decision assumed that the admissions tax there imposed was a direct burden on the State, that assumption was required only for the purpose of considering the first principle of limitation of immunity as formulated in the Gerhardt case. Such an assumption need not be made here. It is true, of course, that unless there is a shift in demand for admissions to petitioner’s beach, imposition of the tax may to an undeterminable extent adversely affect the volume of admissions. Insofar as this occurs, the services of the District will be less widely available and its revenues from beach admissions will be reduced. But admissions tax, which is “paid by the person paying for such admission,” is so imposed as to facilitate absorption by patrons of the beach rather than by the District, and we have no evidence that the District will be forced to absorb the tax in order to maintain the volume of its revenues and the availability of its benefits. Cf. Metcalf & Eddy v. Mitchell, 269 U. S. 514, 526 (1926). “The mere fact that the economic burden of such taxes may be passed on to a state government and thus increase to some extent, here wholly conjectural, the expense of its operation, infringes no constitutional immunity. Such burdens are but normal incidents of the organization within the same territory of two governments, each possessed of the taxing power.” Helvering v. Gerhardt, supra, 304 U. S. at 422.
As it follows that there is no constitutional objection to the tax penalties assessed against petitioner, the decision of the Court of Appéals must be
Affirmed.
Mr. Justice Douglas and Mr. Justice Minton took no part in the consideration or decision of this case.
A war tax rate of 1 cent for each 5 cents or major fraction thereof has been in effect since April 1, 1944, pursuant to Revenue Act of 1943, § 302 (a). 58 Stat. 21, 61 (1944).
The District Court allowed recovery only of payments made since January 1, 1945, when respondent took office as Collector. These payments were based on petitioner’s operations after October 1, 1941, through 1945. Prior to January 1, 1945, petitioner paid $57.20 on the basis of operations from July 25, 1941, to October 1, 1941.
See 42 Ill. L. Rev. 818, 819-820 (1948).
The Report of the House Committee on Ways and Means relating to the War Revenue Act of 1917 “recommended that this tax be imposed upon all places to which admission is charged, such as motion-picture shows, theaters, circuses, entertainments, cabarets, ball games, athletic games, etc., but not upon admissions all the proceeds of which will go exclusively to the benefit of religious or charitable institutions or for agricultural purposes.” H. R. Rep. No. 45, 65th Cong., 1st Sess. 8 (1917). See 55 Cong. Rec. 2148 (1917).
In the admissions tax provisions of the Code, words restricting the imposition of tax to certain classes of places appear only in subsections other than (a) of § 1700. Section 1700 (b) imposes a tax of 11 per cent on the permanent use or lease of boxes or seats “in an opera house or any place of amusement”; such tax is in lieu of that provided for under § 1700 (a). Section 1700 (c) imposes on the sale outside box offices, of tickets to “theaters, operas, and other places of amusement” a tax of 11 per cent of the price in excess of the box office price; such tax is in addition to the tax imposed by § 1700 (a). Section 1700 (d) imposes a tax of 50 per cent on the amount of sales in excess of regular price by the management of “any opera house, theater, or other place of amusement.” Section 1700 (e) imposes a tax of 5 per cent on amounts paid for admission, refreshment, service, or merchandise, “at any roof garden, cabaret, or other similar place furnishing a public performance for profit”; in such cases no tax may be imposed under § 1700 (a).
Compare Exmoor Country Club v. United States, 119 F. 2d 961 (C. A. 7th Cir., 1941); Twin Falls Natatorium v. United States, 22 F. 2d 308 (D. Idaho, 1927); United States v. Roller, 287 F. 418 (W. D. Wash., 1921).
Accord: Dashow v. Harrison, 1946 P-H ¶72,405 (N. D. Ill., 1946).
Although an exemption was allowed by § 1701 of the Internal Revenue Code prior to October 1, 1941, of “admissions all the proceeds of which inure . . . exclusively to the benefit of . . . societies or organizations conducted for the sole purpose ... of improving any city, town, village, or other municipality,” we need not determine whether the exemption was properly interpreted as inapplicable to activities conducted by a municipal corporation. See Treas. Reg. 43 (1928 ed.) Art. 22; id. (1932 ed.) Art. 22; id. (1940 ed.) § 101.25. The provision became inapplicable prior to the period for which petitioner made payments which could be recovered against the present respondent. See note 2, supra.
Petitioner has argued that the specific exemption benefiting municipal improvement societies was intended to afford them the same exemption which Congress thought applied to municipal corporations; thus, it is urged, repeal of the societies’ exemption still would leave the exemption in the case of municipally conducted activities. If Congress assumed that any such municipal corporation exemption existed by implication, it seems likely that it did so because of constitutional considerations which we notice hereafter and not because of a belief or purpose that the tax was not applicable to activities conducted by any public agency. Thus Congress, in adopting 49 Stat. 1757, 1792 (1936) and 55 Stat. 303, 350 (1941), apparently assumed that an express exemption was necessary in order to withdraw admissions to National Parks from the tax statute. Cf. 55 Stat. 687, 710 (1941), terminating such exemptions of park admissions.
Treas. Reg. 43 (1919 ed., Part 1) Art. 42; id. (1921 ed., Part 1) Art. 42; id. (1922 ed., Part 1) Art. 26; id. (1924 ed., Part 1) Art. 26; id. (1926 ed., Part 1) Art. 26; id. (1928 ed.) Art. 24; id. (1932 ed.) Art. 24; id. (1940 ed.) § 101.27; id. (1941 ed.) § 101.16.
Revenue Act of 1918, § 800, 40 Stat. 1057, 1120; Revenue Act of 1921, § 800, 42 Stat. 227, 289; Revenue Act of 1924, § 500, 43 Stat. 253, 320; Revenue Act of 1926, § 500, 44 Stat. 9, 91; Revenue Act of 1928, § 411, 45 Stat. 791, 863; Revenue Act of 1932, § 711, 47 Stat. 169, 271; Pub. Res. No. 36, June 28, 1935, 49 Stat. 431; I. R. C. §§ 1700, 1701 (1939); Revenue Act of 1941, § 541, 55 Stat. 687, 710.
See Huguenot Yacht Club v. United States, 32 F. Supp. 387, 388 (S. D. N. Y., 1940); Lent, The Admissions Tax, 1 Nat. Tax J. 31, 35-36 (1948); 61 Harv. L. Rev. 894 (1948).
See Lent, note 10, supra, at 40-42.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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sc_partywinning
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
JAMES, JUDICIAL ADMINISTRATOR, et al. v. STRANGE
No. 71-11.
Argued March 22, 1972
Decided June 12, 1972
Powell, J., delivered the opinion for a unanimous Court.
Edward G. Collister, Jr., Assistant Attorney General of Kansas, argued the cause for appellants. With him on the brief were Vern Miller, Attorney General, and Matthew J. Dowd, Assistant Attorney General.
John E. Wilkinson argued the cause and filed a brief for appellee.
Marshall J. Hartman filed a brief for the National Legal Aid and Defender Association as amicus curiae.
Mr. Justice Powell
delivered, the opinion of the Court.
This case presents a constitutional challenge to a Kansas recoupment statute, whereby the State may recover in subsequent civil proceedings counsel and other legal defense fees expended for the benefit of indigent defendants. The three-judge court below held the statute unconstitutional, finding it to be an impermissible burden upon the right to counsel established in Gideon v. Wainwright, 372 U. S. 335 (1963). The State appealed and we noted jurisdiction, 404 U. S. 982.
The relevant facts are not disputed. Appellee Strange was arrested and charged with first-degree robbery under Kansas law. He appeared before a magistrate, professed indigency, and accepted appointed counsel under the Kansas Aid to Indigent Defendants Act. Appellee was then tried in the Shawnee County District. Court, on the reduced charge of pocket picking.. He pleaded guilty and received. a suspended sentence and three years’ probation.
Thereafter, appellee’s counsel, applied to the State for payment for his services and received $500 from the Aid to Indigent Defendants Fund. Pursuant to Kansas’ recoupment statute, the Kansas Judicial Ad-' ministrator requested appellee to reimburse the State within 60 days or a judgment for the $500 would be docketed against him. Appellee contends this procedure violates his constitutional rights.
I
It is necessary at the outset to explain the terms and operation of the challenged statute. When the State provides an indigent defendant with counsel or other legal services, the defendant becomes obligated to the State for the amount expended in his behalf. Within 3Ó days of the expenditure, the defendant is notified of his debt and given 60 days to repay it. If the sum remains unpaid after the 60-day period, a judgment is docketed against defendant for the unpaid amount. Six percent annual interest runs on the debt from the date the expenditure was made. The debt becomes a lien on the real estate of defendant and may be executed by garnishment or in any other manner provided by the Kansas Code of Civil Procedure. The indigent defendant is not, however, accorded any of the exemptions provided by that code for other judgment debtors except the homestead exemption. If the judgment is not executed within five years, it becomes dormant and ceases to operate as a lien on the debtor’s real estate, but may be revived in the same manner as other dormant judgments under the code of civil procedure.
Several features of this procedure merit mention. The entire program is administered by the judicial administrator, a public official, but appointed counsel are private practitioners. The statute apparently leaves to administrative discretion whether, and under what circumstances, enforcement of the judgment will be sought. Recovered sums do, however, revert to the Aid to Indigent Defendants Fund.
The Kansas statute is but one of many state re-coupment laws applicable to counsel fees and expenditures paid for indigent defendants. The statutes vary' widely in their terms. Under some statutes, the indigent’s liability is to the county in which he is tried; in others to the State. Alabama and Indiana make assessment and recovery of an indigent’s counsel fees discretionary .with the court. Florida’s recoupment law-has no statute of limitations and the State is deemed to have a perpetual lien against the defendant’s real and personal property and estate. Idaho, on the other hand, has a five-year statute of limitations on the recovery of an “indigent’s” concealed assets at the time of trial and a three-year statute for the recovery of later acquired ones. In Virginia and West Virginia, the amount paid to court-appointed counsel is assessed only against convicted defendants as a part of costs, although the majority of state recoupment laws apply whether or not the defendant prevails. If is thus apparent that state recoupment laws and procedures differ significantly in their particulars. Given the wide differences in the features of these statutes, any broadside pronouncement on their general validity would be inappropriate.
We turn therefore to the Kansas statute, aware that our reviewing function is a limited one. We do not inquire whether this statute is wise or desirable, or “whether it is based on assumptions scientifically substantiated.” Roth v. United States, 354 U. S. 476, 501 (1957) (separate opinion of Harlan, J.). Misguided laws may nonetheless be constitutional. It has been noted both in the briefs and at argument that only $17,000 has been recovered under the statute in its almost two years of operation, and that this amount is negligible compared to the total expended. Our task, however, is not to weigh this statute’s effectiveness but its constitutionality. Whether the returns under the statute justify the expense, time, and efforts of state officials is for the ongoing supervision of the legislative branch. .
The court below invalidated this statute on the grounds that .it “needlessly encourages indigents to do without counsel arid consequently infringes on the right to counsel as explicated in Gideon v. Wainwright, supra.” 323 F. Supp. 1230, 1233. In Gideon, counsel had been denied an indigent defendant charged with a felony because his was not a capital case. This Court often has voided state statutes and practices which denied to accused indigents the means to present effective defenses, in courts of law. Douglas v. California, 372 U. S. 353 (1963); Draper v. Washington, 372 U. S. 487 (1963); Lane v. Brown, 372 U. S. 477 (1963); Griffin v. Illinois, 351 U. S. 12 (1956). Here, however, Kansas has enacted laws both to provide and compensate from public funds counsel for the indigent. There is certainly no denial of the right to counsel in the strictest sense. Whether the statutory obligations for repayment impermissibly deter the exercise of this right is a question we need not reach, for wé find the statute before us constitutionally infirm on other grounds.
II
Appellants have asserted in argument before this Court that the statute “has attempted to treat them [indigent defendants] the same as would any civil judgment debtor be treated in the State courts . . . .” Again, in their brief appellants assert that “[f]or all practical purposes the methods available for enforcement of the judgment are the same as those provided by the Code of Civil Procedures [sic] or any other civil judgment.” The challenged portion of the statute- thrice alludes to means of debt recovery prescribed by the Kansas Code of Civil Procedure.
Yet the ostensibly equal treatment of indigent defendants with other civil judgment debtors recedes sharply as one examines the statute more closely. The statute stipulates that save for the homesteád, “[n]one of the exemptions provided for in the code of civil procedure shall apply to any such judgment . . . .” This provision strips from indigent defendants the array of protective exemptions Kansas has erectéd for other civil judgment debtors, including restrictions on the amount of disposable earnings subject to garnishment, protection of the. debtor from wage garnishment at times of severe personal or. family sickness, and exemption from attachment and execution on a debtor’s personal clothing, books, and tools of trade. For the head of a family, the exemptions afforded other judgment debtors becommore extensive, and cover furnishings, food, fuel, clothing, means of transportation, pension funds, and even a family burial plot or crypt.
Of the above exemption^, none is more important to a debtor than the exemption of his wages from unrestricted garnishment. The debtor’s wages are his sustenance, with which he supports himself and his family. The average low income wage' earner spends nearly nine-tenths of those wages for items of immediate consumption. This Court has recognized the potential of certain garnishment proceedings to “impose tremendous hardshipsi on wage earners with families to support.” Sniadach v. Family Finance Corp., 395 U. S. 337, 340 (1969). Kansas has likewise perceived the burden to a debtor and his family when wages may be subject to wholesale garnishment. Consequently, under its code of civil procedure, the maximum which can be garnished is the lesser of 25% of a debtor's weekly disposable earnings or the amount by which those earnings exceed 30 times the federal minimum hourly wage. No one creditor may issue more than one garnishment during any one month, and no employer may discharge an employee because his earnings have been garnished for a single indebtedness. For Kansas to deny protections such as these to the once criminally accused is to risk denying him the means needed to keep himself and his family afloat.
The indigent's predicament under this statute comes into sharper focus when compared with that of one who has hired counsel in his defense. Should the latter prove unable to pay and a judgment be obtained against him, his obligation would become enforceable, under the relevant provisions of the Kansas Code of Civil Procedure. But, unlike the indigent under the recoupment statute, the code’s exemptions would protect this judgment debtor.
It may be argued that an indigent accused, for whom the State' has provided counsel, is in a different class-with respect to collection of his indebtedness than a judgment creditor whose obligaticn arose from a private transaction. But other Kansas statutes providing for recoupment of public assistance to indigents do not include the severe provisions imposed on indigent defendants in this case. Kansas has enacted, as have many other States, laws for state recovery of public welfare assistance- when paid to an ineligible recipient. Yet the Kansas welfare recipient, unlike the indigent defendant,' is not denied the customary exemptions.
We recognize, of course, - that the State’s claim to reimbursement may take precedence, under appropriate circumstances, over the claims of private creditors and that enforcement procedures with respect to judgments need not be identical. This does not mean, however, that a State may impose unduly harsh or discriminatory • terms merely because the obligation is to the public treasury rather than to a private creditor. The State itself in the statute before us analogizes the judgment lien against the indigent defendant .to other “judgments under the code of civil, procedure.” But the statute then strips the indigent defendant of the very exemptions- designed primarily to benefit debtors of low and marginal incomes.
The Kansas statute provides for recoupment whether the indigent defendant is acquitted or found- guilty. If acquitted, the indigent finds himself obligated to repay the State for a service the need for which resulted from the State’s prosecution. It is difficult to See why such a defendant, • adjudged to be innocent of the State’s charge, should be denied basic exemptions accorded all other judgment debtors. The indigent defendant who is found guilty is uniquely disadvantaged in terms of the practical operation of the statute. A criminal conviction usually limits employment opportunities. This is especially true where a prison sentence has been served. It is in the interest of society and the State that such a defendant, upon satisfaction of the criminal penalties imposed, be afforded a reasonable opportunity of employment, rehabilitation and return to useful citizenship. There is limited incentive to seek legitimate employment when, after serving a sentence during which interest has accumulated on the indebtedness for legal services, the indigent knows that his wages will be garnished without the benefit of any of the customary exemptions.
Appellee in this case has now married, works for a modest wage, and has recently become a father. To deprive him of all protection for his wages and intimate personalty discourages the search for self-sufficiency which might make of the criminally accused a contributing citizen. Not only does this treatment not accord with the treatment of indigent recipients of public welfare or with that of other civil judgment debtors, but the Kansas statute also appears to be alone among re-coupment laws applicable to indigent defendants in expressly denying them the benefit of basic debtor exemptions.
Ill
In Rinaldi v. Yeager, 384 U. S. 305 (1966), the Court considered a situation comparable in some respects to the case at hand. Rinaldi involved a New Jersey statute which required only those indigent defendants who were sentenced to confinement in state institutions to reimburse the State the costs of a transcript on appeal. In Rinaldi, as here, a broad ground of decision was urged, namely, that the statute unduly burdened an indigent’s right to appeal. The Court found, however, a different basis for decision* holding that “[t]o fasten a financial burden only upon those unsuccessful appellants who are confined in state institutions ... is to make an invidious discrimination” in violation. of the Equal Protection Clause. Id., at 309.
Rinaldi affirmed that the Equal Protection Clause “imposes a requirement of some rationality in the nature of the class singled out.” Id., at 308-309. This requirement is lacking where, as in the instant case, the State has subjected indigent defendants to such discriminatory conditions of repayment. This case, to be sure, differs from Rinaldi in that here all indigent defendants are treated alike. But to impose these harsh conditions on a class of debtors who were provided counsel as required by the Constitution is to practice, no less than in Rinaldi, a discrimination which the Equal Protection Clause proscribes.
The Court assumed in Rinaldi, arguendo, “that, a legislature could validly provide for replenishing a county treasury from the pockets of those who have directly benefited from county expenditures.” Id., at 309. We note here also that the state interests represented by recoupment laws may prove important ones. Recoupment proceedings may protect the State from fraudulent concealment of assets and false assertions of indigency. Many States, moreover, face expanding criminal dockets, and this Court has required appointed counsel for indigents in widening classes of cases and stages of prosecution.' Such trends have heightened the burden on public revenues, and recoupment laws reflect legislative efforts to recover some of the added costs. Finally, federal dominance of the Nation’s major revenue sources haS encouraged state and local governments to seek new methods of conserving public funds, not only through the recoupment of indigents’ counsel fees but of other forms of public assistance as well.
We thus recognize that state recoupment statutes may betoken legitimate state interests. But these interests are not thwarted by requiring more even treatment of indigent criminal defendants with other-classes of debtors to whom the statute itself repeatedly makes reference. State recoupment laws, notwithstanding the state interests they may serve, need not blight in such discriminatory fashion the hopes of indigents for self-sufficiency and self-respect. . The statute before us embodies elements of púnitiveness and discrimination which violate the rights of citizens to equal treatment under the law.
The judgment of the court below is affirmed.
The opinion of the three-judge court is reported in 323 F. Supp. 1230 (Kan. 1971).
Kan. Stat. Ann. §§22-4501 to 22-4515 (Supp. 1971).
Kan. Stat. Ann. §22 — 4513 (Supp. 1971). The statute reads as follows:
“(a) Whenever any expenditure has been made from the aid to indigent defendants fund to provide counsel and other defense services to any defendant, as authorized by section 10, . . . such defendant shall be liable to the state of Kansas for a sum équal-to such expenditure, and such sum may be recovered from the defendant by the state of Kansas for the benefit of the fund to aid indigent defendants. Within thirty (30) days after such expenditure, the judicial administrator shall send a notice by certified mail to the person on whose behalf such expenditure was made, which notice shall state the amount of the expenditure and shall demand that the defendant pay said sum to'the state of Kansas for the benefit of the fund to aid indigent defendants within sixty (60) days after receipt of such notice. ' The notice shall state that such sum became due on the date of the^expenditure and that the sum demanded will bear interest at six perc.ent (6%) per annum from the due date until paid. Failure to receive any such notice shall not relieve the person to whom it is addressed from the payment of the sum claimed .and-, any interest due thereon.
“Should the sum demanded remain unpaid at the expiration of sixty (60) days after mailing the notice, the judicial administrator shall certify an abstract of the total amount of the unpaid demand and interest thereon to the clerk of the district court of the county in which counsel was appointed or the expenditure- authorized by the court, and such clerk shall enter the total amount thereof on his judgment docket and said total amount, together with the interest thereon at the rate of six percent (6%) per annum, from the date of the expenditure thereof until paid, shall become a judgment in the same manner and to the same extent as any other judgment under the code of civil procedure and shall become a lien on real estate from and after the time of filing thereof. A transcript of said judgment may be filed in another county and become a lien upon real estate, located in such county, in the same manner as is provided in ease of other judgments. Execution, garnishment, or other proceedings in aid of execution may issue within the county, or to any other county, on said judgment in like manner as on judgments under the code of civil procedure. None of the exemptions prbvided for in the code of civil procedure shall apply to any - such judgment, but no such judgment shall be levied against a homestead. If execution shall not be sued out within five (5) years from the date of the entry of any such judgment, or’if five (5) years shall have’intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant and shall cease to operate as a lien on real estate of the judgment debtor. Such dormant judgment may be revived in like manner as dormant judgments under the code of civil procedure.
“(b) Whenever any expenditure has been' made from the aid to indigent defendants fund to provide counsel, and other defense. services to' any defendant, as authorized by section 10, ... a sum equal to such expenditure' may be recovered by the state of Kansas for the benefit of the aid-to indigent defendants fund from any persons to whom the indigent defendant shall have transferred any of his property without adequate monetary consideration after the commission of the alleged crime, to the extent of the value of such transfer, and such persons are hereby made liable to reimburse the state of Kansas for such expenditures with interest at six percent (6%)'per annum. Any action to recover judgment for such expenditures shall be prosecuted by the attorney general, who may require the assistance of the county attorney of the county in which the action is to be filed, and such action shall be governed by the provisions of the code of civil procedure relating to actions for the recovery of money. No action shall be brought against any person under the provisions of this section to recover for sums expended ' on behalf of an indigent defendant, unless such ^action shall have been filed within two (2) years after the date of the expenditure from the fund to aid indigent defendants.”
Failure to receive notice, however, does not relieve the person to whom it is addressed of the obligation.
A dormant judgment may be revived within two years of the date on which the judgment became dormant. -IKan. Stat. Ann. §60-2404 (1964).
There is also a federal reimbursement provision, 18 U. S. C. § 3006A (f):
“Receipt of other payments. — Whenever the' United States magistrate or the court finds that funds are available for payment, from or on behalf of a person furnished representation, it may authorize or direct that such funds be paid to the appointed attorney, to the bar association or legal aid agency or community defender organization which provided the appointed attorney, to any person or organization authorized pursuant to subsection (e) to render investigative, expert, or other services, or to the court for deposit, in the Treasury as a .reimbursetnent to the appropriation, current at the time of payment, to carry out the provisions of this section. Except as so authorized or directed, no such person or organization may-request or accept any payment or promise of payment for representing a defendant.”.
The board of county commissioners has discretion to compromise or' release the hen, however. Fla. Stat. Ann. § 27.56 (Supp. 1972-1973).
State recoupment statutes, including those quoted above, are as follows:
Ala. Code, Tit. 15, § 318 (12) (Supp. 1969); Alaska Stat. § 12.55.020 (1962); Fla. Stat. Ann. §27.56 (Supp. 1972-1973); Idaho Code § 19-858 (Supp. 1971); Ind. Ann. Stat. §9-3501 (Supp. 1970); Iowa Code Ann. §775.5 (Supp. 1972); Md. Ann. Code, Art. 26, § 12C (Supp. 1971); N. M. Stat. Ann. § 41-22-7 (Supp. 1971); N. D. Cent. Code §29-07-01.1 (Supp. 1971); Ohio Rev. Code Ann. §2941.51 (Supp. 1971); S. C. Code Ann. § 17-283 (Supp. 1971); Tex. Code Crim. Proc., Art. 1018 (1966); Va. Code Ann. § 14.1-184 (Supp. 1971); W. Va. Code Ann. §62-3-1 (Supp. 1971); Wis. Stat. Ann. §256.66 (1971).
For fiscal 1971 $400,000 was appropriated to fund the program.
See n. 2, supra.
“Tr: of Oral Arg.. 9. The State concedes .that exemptions for other civil judgment debtors are broader than for indigent defendants, id., at 10, a matter we will address forthwith. .
Brief for Appellants 7:
See .Kan. Stat. Ann. §§ 60-701 to 60-724, 60-2401 to. 60-2419 (1964 and Supp. 1971).
The exemptions in the civil code are set forth in Kan. Stat. Ann. §§60-2301 to 60-2311 (1964 and Supp. 1971).
Kan. Stat. Ann. §§ 60-2304 and 60-2308 (1964 and Supp. 1971).
Bureau of Labor Statistics, Handbook of Labor Statistics 281 (1968). Low-wage earners are defined as families with after-tax income of less than $5,000.
The Court in Sniadach held that Wisconsin’s prejudgmént wage garnishment procedure, as a taking of property without notice and prior hearing, violated the Due Process Clause of the Fourteenth Amendment.
Kan. Stat. Ann. §§ 60-2310 (b) and 60-2311 (Supp. 1971).' Section 60-2310 also provides further debtor protection from wage garnishment at a time of disabling personal sickness and from professional collecting agencies; See Kan. Stat. Ann. §§ 60-2310 (c) and (d) (Supp. 1971). See also Bennett, the 1970 Kansas Legislature in Review, 39 J. B. A. K. 107, 178 (1970), which points out that the State’s restrictions on garnishments have been made to conform to Tit. Ill of the federal Consumer Credit Protection Act, 82 Stat. 163. Kansas, however, provided significant wage exemptions from garnishment long before the federal Act was passed.
Kan. Stat. Ann. §39-719b (1964); §59-2006 (Supp. 1971). Section 39-719b deals mainly with the recovery of assistance from an ineligible recipient. Yet, even when the welfare recipient is deemed to have defrauded the State, he still escapes the immediate interest accumulations and denial of exemptions imposed on indigent defendants:
Ҥ 39-719b. Duty of recipient to report changes; action by board; recovery of assistance obtained by ineligible recipient. If at any time during the continuance of assistance to any person, the recipient thereof becomes possessed of any property or income in excess of the amount ascertained at the time of granting assistance, it shall be the duty of the recipient to notify, the county board of social welfare immediately of the receipt or possession of such property or income and said county board may, after investigation, cancel the assistance in accordance with the circumstances.
“Any assistance paid shall be recoverable by the county board as a debt due to the state and the county in proportion to the amount of the assistance paid by each, respectively: If during the life or on the death of any person receiving assistance, it is found that the recipient was possessed of income or property in excess of the amount reported or ascertained at the time of granting assistance, and if it be shown that such assistance was obtained by an ineligible recipient,' the total amount of the assistance may be recovered by the state department of social welfare as a fourth class claim, from the estate of the recipient or in an action brought against the recipient while ■living.”
There appears to be a. further discrimination against the indigent defendant as contrasted with the delinquent welfare recipient. The recoupment statute applicable to indigent defendants provides for the accumulation of 6% annual interest from the date expenditures are made for counsel or other legal defense costs. Kan. Stat. Ann. § 22-4513 (Supp. 1971). The interest build-up for the indigent defendant would not be insubstantial, In the five years before the judgment became dormant, interest accumulations could lift ap-pellee’s $500 debt to almost $670. If the dormant judgment is revived within the statutorily prescribed two years, the principal and interest might total over $750. (The interest presumably would run while the judgment was dormant since “[a] dormant judgment may be revived and have the same force and effect as if it had not become dormant . . . .” Kan. Stat. Ann. §60-2404 (Supp. 1971)).
Kansas also has a statute providing that all judgments shall bear 8% interest from the day on which they are rendered. Kan. Stat. Ann. § 16-204 (Supp. 1971) (recently amended from 6%) . Presumably this statute would cover the “debts” of welfare recipients once they are reduced to judgment. The debt of the indigent defendant, however, runs from the date the assistance is granted, while any interest on the debt of a welfare, recipient would presumably run from the date of judgment.
For example, Kansas does not extend its exemptions with respect to wage garnishment to any debt due for any state or federal tax, Kan. Stat. Ann. § 60-2310 (e) (3) (Supp. 1971). This type of public debt, however, differs from the instant case in representing a wrongful withholding from the State of a tax on assets in the actual possession of the taxpayer and not, as here, a debt contracted under circumstances of indigency.
The statutes of various other States, e. g., Alaska, South Carolina, and West Virginia, provide, as does Kansas, for recovery against . indigent defendants in the same manner as on other judgments. Unlike Kansas, however, these States do not expressly subject indigents to conditions to which other civil judgment debtors are not liable. See n. 8, supra, for citations.
See n. 8, supra, for citations.
Gideon v. Wainwright, 372 U. S. 335 (1963); Douglas v. California, 372 U. S. 353 (1963); Argersinger v. Hamlin, ante, p. 25.
Coleman v. Alabama, 399 U. S. 1 (1970); Mempa v. Rhay, 389 U. S. 128 (1967); United States v. Wade, 388 U. S. 218 (1967); Miranda v. Arizona, 384 U. S. 436 (1966).
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_realresp
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether or not the formally listed respondents in the case are the "real parties." That is, are they the parties whose real interests are most directly at stake? (e.g., in some appeals of adverse habeas corpus petition decisions, the respondent is listed as the judge who denied the petition, but the real parties are the prisoner and the warden of the prison) (another example would be "Jones v A 1990 Rolls Royce" where Jones is a drug agent trying to seize a car which was transporting drugs - the real party would be the owner of the car). For cases in which an independent regulatory agency is the listed respondent, the following rule was adopted: If the agency initiated the action to enforce a federal rule or the agency was sued by a litigant contesting an agency action, then the agency was coded as a real party. However, if the agency initially only acted as a forum to settle a dispute between two other litigants, and the agency is only listed as a party because its ruling in that dispute is at issue, then the agency is considered not to be a real party. For example, if a union files an unfair labor practices charge against a corporation, the NLRB hears the dispute and rules for the union, and then the NLRB petitions the court of appeals for enforcement of its ruling in an appeal entitled "NLRB v Widget Manufacturing, INC." the NLRB would be coded as not a real party. Note that under these definitions, trustees are usually "real parties" and parents suing on behalf of their children and a spouse suing on behalf of their injured or dead spouse are also "real parties."
UNITED STATES DEPARTMENT OF DEFENSE DEPARTMENT OF MILITARY AFFAIRS, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
No. 91-1216.
United States Court of Appeals, District of Columbia Circuit.
Argued March 30, 1992.
Decided June 2, 1992.
Marleigh D. Dover, with whom Stuart M. Gerson, Asst. Atty. Gen. and Leonard Schaitman, Dept, of Justice, were on the brief, for petitioner.
Richard Zorn, with whom William E. Persina, Sol. and William R. Tobey, Deputy Sol., Federal Labor Relations Authority, were on the brief, for respondent.
Before WALD, EDWARDS and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
WALD, Circuit Judge:
Under the Federal Service Labor-Management Relations Act, federal agencies are required to bargain with their employees’ representatives over “conditions of employment.” 5 U.S.C. § 7114(b)(2). “Conditions of employment,” however, are defined to exclude “policies, practices, and matters ... specifically provided for by federal statute.” Id. § 7103(a)(14)(C). That exclusion, along with 5 U.S.C. § 7117(a), which rejects as negotiable proposals that involve government-wide rules and regulations, incorporates the principle that a federal agency cannot be required to negotiate over any proposal that is inconsistent with federal law. See Department of Treasury v. FLRA, 873 F.2d 1473, 1476 (D.C.Cir.1989); United States Dep’t of Health and Human Servs. v. FLRA, 858 F.2d 1278, 1283 (7th Cir.1988).
In this case, we consider whether a union bargaining proposal that would limit the manner in which a federal agency responds to requests for information under the Freedom of Information Act (“FOIA”) is inconsistent with federal law and therefore nonnegotiable. We hold that the bargaining proposal is nonnegotiable as in violation of the FOIA and therefore grant the Department of Defense’s petition for review.
I. Background
During collective bargaining between the National Federation of Federal Employees, Local 1655 (the “Union”) and the Department of Defense, Department of Military Affairs (the “Agency”), the Union submitted eight proposals for negotiation, five of which concerned the manner in which the Agency would respond to requests for information under the FOIA. The Agency refused to negotiate over any of the proposals and the Union appealed to the Federal Labor Relations Authority (“FLRA” or “Authority”) pursuant to 5 U.S.C. § 7117(c). The FLRA agreed with the Agency that the Union’s proposals were not negotiable, with one exception: Proposal 5. That proposal, the subject of this appeal, reads:
Data/information that the Union could receive from an employee, does not relieve the Employer from providing that data/information to the Union.
The FLRA interpreted the proposal to mean that, if adopted, the Agency would be required “to provide to the Union information regardless of whether the information might also be available to the Union from the employee who is the subject of the information.” National Fed’n of Fed. Employees Local 1655 and U.S. Dep’t of Defense Dep’t of Military Affairs, Decision and Order on Negotiability Issues (Mar., 12, 1991) [hereinafter “Decision and Order”] at 11 (emphasis supplied). “In other words,” the Authority continued, “the proposal would simply preclude the Agency from asserting an ‘alternative means’ defense to a FOIA request.” Id. So interpreted, the Authority concluded that the proposal was not inconsistent with any federal law and was therefore negotiable. Id. at 12. The Department of Defense challenges that ruling, arguing that the proposal is inconsistent with federal law, namely the FOIA, and is therefore not negotiable.
II. Discussion
A. Tax Analysts
In justifying its conclusion that Proposal 5 is consistent with federal law, the Authority relies heavily on United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989), in which the Supreme Court ruled that the Department of Justice was required to make available under the FOIA copies of certain “unpublished” district court decisions in its case files despite the fact that those decisions were available on request from the clerks of the courts in which they were rendered. Although recognizing that the opinions were not protected by any of the nine enumerated exemptions to disclosure under the FOIA, see 5 U.S.C. § 552(b), the Department of Justice nonetheless argued that there was “nothing improper in directing a requester to the principal, public source of records.” Tax Analysts, 492 U.S. at 151, 109 S.Ct. at 2851 (internal quotations omitted). The Court disagreed, however, stating that
[i]f Congress had wished to codify an exemption for all publicly available materials, it knew perfectly well how to do so. It is not for us to add or detract from Congress’ comprehensive scheme, which already balances, and protects all interests implicated by Executive Branch disclosure.
Id. at 152-53, 109 S.Ct. at 2852 (internal quotation omitted). Even though the FLRA did not refer to Tax Analysts in its Decision and Order, counsel for the FLRA argues that the FLRA’s order is simply an “expression of the principle established in Tax Analysts.” Brief for Respondent/Cross-Petitioner at 5.
The Authority’s reliance on Tax Analysts, however, is misplaced. Tax Analysts stands for the proposition that the existence of an alternative source of information is not a per se defense to a request for information under the FOIA. However, as we discuss below, under the law of this circuit consideration of alternative sources of information is indeed one factor that agencies and reviewing courts may legitimately consider in determining whether privacy-implicating information must be disclosed under the FOIA. Because the Union’s proposal would preclude consideration of that factor — the proposal, as interpreted in the FLRA’s decision, would require disclosure “regardless ” of the existence of alternative sources, Decision and Order at 11 — it is inconsistent with this circuit’s FOIA precedents. As such, the Union’s proposal is not negotiable.
B. FOIA Exemption 6
Exemption 6 of the FOIA excludes from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Incorporated in the “clearly unwarranted” language is the requirement for an agency “balancing of interests between the protection of an individual’s private affairs from unnecessary public scrutiny, and the preservation of the public’s right to governmental information.” Department of Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1976) (quoting S.Rep. No. 813, 89th Cong., 1st Sess. 9 (1965)); see also FLRA v. United States Dep’t of Treasury, Fin. Management Serv., 884 F.2d 1446, 1451 (D.C.Cir.1989), cert. denied, American Fed’n of Gov’t Employees v. United States Dep’t of Health and Human Servs., 493 U.S. 1055, 110 S.Ct. 863, 107 L.Ed.2d 947 (1990); Getman v. NLRB, 450 F.2d 670, 674 n. 10 (D.C.Cir.1971). In making that balance, agencies and reviewing courts consider whether disclosure of the requested information would result in an invasion of privacy, and if so, the extent and seriousness of that invasion, as well as the extent to which disclosure would serve the public interest. See, e.g., Campbell v. United States Civil Serv. Comm’n, 539 F.2d 58 (10th Cir.1976); see also Painting & Drywall Work Preservation Fund, Inc. v. United States Dep’t of Hous. & Urban Dev., 936 F.2d 1300, 1302 (D.C.Cir.1991); Rural Hous. Alliance v. United States Dep’t of Agric., 498 F.2d 73, 77 (D.C.Cir.1974); Getman, 450 F.2d at 674-76.
Under present circuit law, one factor agencies and courts consider on the public interest side of the equation is the extent to which there are alternative sources of information available that could serve the public interest in disclosure. Such inquiry proceeds on the logic that to the extent there are “alternative means” available to obtain the information, the need for enforced disclosure under the FOIA of privacy-implicating information is diminished. For example, in Financial Management, supra, we recognized that disclosure of the names and addresses of public employees “could provide leads for an investigative reporter seeking to ferret out what ‘government is up to,’ ” but discounted the value of that disclosure, albeit only slightly, because an investigative reporter would have “an alternative means of access” to federal employees in the form of “face-to-face conversation attained simply by following other leads and roaming government hallways.” 884 F.2d at 1452. For similar reasons, we discounted the public interest in disclosure of the names and addresses of construction workers on HUD-assisted construction projects, see Painting and Drywall, 936 F.2d at 1303, as well as the public interest in disclosure of the names, duty stations, and locations of federal workers who have received outstanding or commendable work evaluations, FLRA v. United States Dep’t of Commerce, Nat’l Oceanic & Atmospheric Admin., 962 F.2d 1055, 1060 n. 2 (D.C.Cir.1992) (noting the availability of alternative means of obtaining information by distributing questionnaires or conducting personal interviews). See also Ripskis v. Dept. of Hous. and Urban Development, 746 F.2d 1, 3-4 (D.C.Cir.1984) (per curiam) (finding that public interest can be advanced by means short of disclosure); Rural Housing, 498 F.2d 73, 77 (remanding for consideration of whether alternative sources of information might be available); Getman, 450 F.2d at 676-77 (noting that FOIA requesters have no other source for obtaining the requested information).
This line of authority belies the notion that Tax Analysts stands for the proposition that consideration of alternative means of obtaining data has no place under the FOIA. While certainly not a per se defense to a FOIA request, consideration of “alternative means” is an aspect of the balancing of interests conducted pursuant to Exemption 6 of the FOIA. The Union’s attempt, endorsed by the FLRA, to take that factor out of the equation is thus inconsistent with law and, as such, nonnegotiable.
III. Conclusion
The FLRA has erroneously ordered the Department of Defense to bargain over a proposal that is inconsistent with federal law. The Agency’s petition for review is
granted and the FLRA’s cross-petition for enforcement of its order is denied.
It is so ordered.
. 5 U.S.C. § 7117(a) provides that:
the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a government-wide rule or regulation.
. This was also the interpretation of the proposal advanced by counsel for the FLRA at oral argument.
Counsel: There is no legal authority that holds that alternative means of obtaining data is a reason to withhold documents requested under the Freedom of Information Act.
The Court: Well right there, right there, what you just said could have two meanings, and that’s where I'm stuck here. I’m trying to figure out what the issue is. One meaning could be what I thought you were saying is that there is no law which says that an agency looking at a FOIA request can say, "we’re not going to give that FOIA request because this is available from an employee. Now we'll go on and we'll treat it like any other FOIA request.” Or, the second one would be the one that I think the government thinks that it may mean and that is, "we're going to look at this just like FOIA, regular FOIA requests to begin with, but whereas with other people we would, could look at the availability of the information elsewhere in an Exemption 6 balancing, we bound ourselves under the contract not to look at that factor in this particular proceeding. Which is it, one or two?
Counsel: Well, this is probably a rare instance, but we concur with the Justice Department on that.
The Court: Ok. I just was trying to get that clear, that’s all.
Counsel: We simply believe that no court has ever held that alternative sources of obtaining information is a factor to be—
The Court: Well, what’s Drywall, what’s our Drywall and the other case—
Counsel: Well, Painting & Drywall and Department of Treasury [Financial Management] are totally different cases and reliance on those is misplaced. Those cases concerned names and home addresses; the court found in that case that the public interest was lessened somehow because of available alternative means of communication. This case does not deal with communication it deals with the data itself. So we don’t believe there's any relationship between the two cases and indeed no court has ever held that alternative sources of obtaining the information is a valid consideration in determining whether to release the information. We believe that that’s consistent with, as we stated in our brief, that’s consistent with Tax Analysts, which squarely held that alternative sources of obtaining data is not a consideration, it's not one of the exemptions, and it’s not a consideration in determining whether to release information____
. Although one plausible reading of the FLRA’s interpretation of the Union’s proposal, discussed at oral argument, might be that it was intended merely to preclude the Agency from rejecting a FOIA request solely on the basis of availability of the information elsewhere and not to prevent the Agency from considering availability in the context of a FOIA Exemption 6 analysis, the FLRA at oral argument disavowed such an interpretation. See supra note 2. Obviously we need not pass on the negotiability of the disavowed interpretation. We note, however, that in other cases where a union proposal seeks only compliance with existing law, the FLRA has specifically described it as such. See, e.g., American Fed’n of Gov't Employees and Dep’t of the Navy, U.S. Marine Corps, 35 F.L.R.A. 108, 111 (1990) (stating that "the proposal requires only that the Agency comply with applicable legal requirements” in taking adverse actions against employees); National Treasury Employees Union and IRS, 3 F.L.R.A. 693, 696 (1980) (noting that the “union’s stated intent is to incorporate ... two provisions of law into the negotiated proposal and to enforce them through the negotiated grievance procedure”). The FLRA made no such characterization here.
. We note, however, that the holding of Financial Management, that federal agencies need not disclose to unions the names and addresses of bargaining unit employees, has not won universal approval. While the First and Second Circuits have followed Financial Management, see FLRA v. United States Dep’t of Veterans Affairs, 958 F.2d 503 (2d Cir.1992); FLRA v. United States Dep’t of the Navy, 941 F.2d 49 (1st Cir. 1991), the Ninth Circuit has ruled the opposite, see FLRA v. United States Dep’t of the Navy, 958 F.2d 1490 (9th Cir.1992).
. When questioned at argument about explicit statements in Financial Management and Painting and Drywall that "alternative means" analysis is a factor to be considered in the Exemption 6 balance, counsel for the FLRA attempted to distinguish those cases as employing an inquiry into whether there were alternative means of communication with bargaining unit employees as opposed to the instant case in which the debate focused on alternative means of obtaining the data requested. See supra note 2.
Counsel did not elaborate on the content or significance of that alleged distinction, nor did he direct us to any authority to support the proposition that there is a substantive distinction to be drawn between alternative means of communication and alternative means of obtaining information. The distinction strikes us as one of semantics, not substance, and, in any event, there are plenty of cases that have expressly framed the FOIA inquiry in terms of alternative sources of information or alternative means of obtaining data. See, e.g., FLRA v. United States Dep’t of Commerce, Nat'l Oceanic & Atmospheric Admin., 962 F.2d at 1060 n. 2 (D.C.Cir.1992) (union has "alternative means of obtaining rating information”); Rural Housing, 498 F.2d 73, 77 (remand for consideration of whether "alternative sources of information” might be available); FLRA v. United States Dep’t of Navy, 958 F.2d 1490, 1494 (9th Cir.1992) (describing the fourth factor considered in Exemption 6 cases as "the availability of any alternative means of obtaining the requested information").
. In ruling that a union’s effort to limit the factors that an agency can consider in evaluating requests for information under the FOIA is nonnegotiable, we are not unmindful of the principle articulated in Chrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979), that the FOIA exemptions permit an agency to withhold information, but do not compel it do so. Id. at 293, 99 S.Ct. at 1713. The FLRA does not, however, make the argument that under Chrysler an agency may disclose more personal information about its employees than that which is mandated by the FOIA, and the Union here was simply asking the Agency to agree to do so.
Such an argument would in any case have encountered hard sledding because while the FOIA itself is not a withholding statute, Chrysler recognized that withholding of information may be required by another statutory mandate. Id. 441 U.S. at 294-316, 99 S.Ct. at 1713-25. The Privacy Act is such a statute. Under the Privacy Act, a federal agency is generally prohibited from disclosing personal information about its employees without their consent. 5 U.S.C. § 552a(b). There is an exception to that broad prohibition, however, for information that "would be required” to be disclosed under the FOIA. Id. § 552a(b)(2). Whereas a federal agency typically can disclose more information than that required to be disclosed under the FOIA, Chrysler, 441 U.S. at 293, 99 S.Ct. at 1713, in responding to a FOIA request for personal information about its employees, a federal agency can only disclose information that it would be required to disclose under the FOIA. For an agency to do otherwise would violate the prohibition on disclosure in the Privacy Act.
Question: Are the formally listed respondents in the case the "real parties", that is, are they the parties whose real interests are most directly at stake?
A. both 1st and 2nd listed respondents are real parties (or only one respondent, and that respondent is a real party)
B. the 1st respondent is not a real party
C. the 2nd respondent is not a real party
D. neither the 1st nor the 2nd respondents are real parties
E. not ascertained
Answer:
|
sc_lcdisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
SAUCIER v. KATZ et al.
No. 99-1977.
Argued March 20, 2001
Decided June 18, 2001
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, and Thomas, JJ,, joined, and in which Sou-TER, J., joined as to Parts I and II. Ginsburg, J., filed an opinion concurring in the judgment, in which Stevens and Breyer, JJ., joined, post, p. 209. Souter, J., filed an opinion concurring in part and dissenting in part, post, p. 217.
Deputy Solicitor General Clement argued the cause for petitioner. On the briefs were former Solicitor General Waxman, Acting Solicitor General Underwood, Assistant Attorney General Ogden, Jeffrey A. Lamken, Barbara L. Herwig, and Edward Himmelfarb.
J. Kirk Boyd argued the cause for respondents. With him on the brief was David H. Williams
Briefs of amici curiae urging reversal were filed for the State of Texas et al. by John Comyn, Attorney General of Texas, Andy Taylor, First Assistant Attorney General, Gregory S. Coleman, Solicitor General, and Lisa R. Eskow, Assistant Solicitor General, joined by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Mark Pryor of Arkansas, Bill Lockyer of California, Ken Salazar of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, James E. Ryan of Illinois, Richard P Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Eliot Spitzer of New York, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, Jan Graham of Utah, William H. Sorrell of Vermont, and Christine 0. Gregoire of Washington; for the Grand Lodge of the Fraternal Order of Police by Tom Rutherford; and for the National Association of Police Organizations et al. by Stephen R. McSpadden.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by David Rudovsky, Michael Avery, Ruth E. Harlow, Steven R. Shapiro, and Alan L. Schlosser; and for the Association of the Bar of the City of New York by Leon Friedman and Ronald J. Tabak.
Justice Kennedy
delivered the opinion of the Court.
In this case a citizen alleged excessive force was used to arrest him. The arresting officer asserted the defense of qualified immunity. The matter we address is whether the requisite analysis to determine qualified immunity is so intertwined with the question whether the officer used excessive force in making the arrest that qualified immunity and constitutional violation issues should be treated as one question, to be decided by the trier of fact. The Court of Appeals held the inquiries do merge into a single question. We now reverse and hold that the ruling on qualified immunity requires an analysis not susceptible of fusion with the question whether unreasonable force was used in making the arrest.
I
In autumn of 1994, the Presidio Army Base in San Francisco was the site of an event to celebrate conversion of the base to a national park. Among the speakers was Vice President Albert Gore, Jr., who attracted several hundred observers from the military and the general public. Some in attendance were not on hand to celebrate, however. Respondent Elliot Katz was concerned that the Army’s Letterman Hospital would be used for conducting experiments on animals. (Katz was president of a group called In Defense of Animals. Although both he and the group are respondents here, the issues we discuss center upon Katz, and we refer to him as “respondent.”) To voice opposition to the possibility that the hospital might be used for experiments, respondent brought with him a cloth banner, approximately 4 by 3 feet, that read “Please Keep Animal Torture Out of Our National Parks.” In the past, as respondent was aware, members of the public had been asked to leave the military base when they engaged in certain activities, such as distributing handbills; and he kept the banner concealed under his jacket as he walked through the base.
The area designated for the speakers contained seating for the general public, separated from the stage by a waist-high fence. Respondent sat in the front row of the public seating area. At about the time Vice President Gore began speaking, respondent removed the banner from his jacket, started to unfold it, and walked toward the fence and speakers’ platform.
Petitioner Donald Saucier is a military police officer who was on duty that day. He had been warned by his superiors of the possibility of demonstrations, and respondent had been identified as a potential protester. Petitioner and Sergeant Steven Parker — also a military police officer, but not a party to the suit — recognized respondent and moved to intercept him as he walked toward the fence. As he reached the barrier and began placing the banner on the other side, the officers grabbed respondent from behind, took the banner, and rushed him out of the area. Each officer had one of respondent’s arms, half-walking, half-dragging him, with his feet “barely touching the ground.” App. 24. Respondent was wearing a visible, knee-high leg brace, although petitioner later testified he did not remember noticing it at the time. Saucier and Parker took respondent to a nearby military van, where, respondent claims, he was shoved or thrown inside. Id., at 25. The reason for the shove remains unclear. It seems agreed that respondent placed his feet somewhere on the outside of the van, perhaps the bumper, but there is a dispute whether he did so to resist. As a result of the shove, respondent claims, he fell to the floor of the van, where he caught himself just in time to avoid any injury. The officers drove respondent to a military police station, held him for a brief time, and then released him. Though the details are not clear, it appears that at least one other protester was also placed into the van and detained for a brief time. Id., at 27.
Respondent brought this action in the United States District Court for the Northern District of California against petitioner and other officials pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), alleging, inter alia, that defendants had violated respondent’s Fourth Amendment rights by using excessive force to arrest him. The District Court granted the defendants’ motions for summary judgment on the grounds of qualified immunity on all claims other than the excessive force claim against Saucier. It held a dispute on a material fact existed concerning whether excessive force was used to remove respondent from the crowd and place him into the van. App. to Pet. for Cert. 27a. The District Court held that the law governing excessive force claims was clearly established at the time of the arrest, and that “[i]n the Fourth Amendment context, the qualified immunity inquiry is the same as the inquiry made on the merits.” Id., at 29a-30a. As a result, it ruled, petitioner was not entitled to summary judgment. Id., at 30a.
In the United States Court of Appeals for the Ninth Circuit petitioner filed an interlocutory appeal from the denial of qualified immunity. 194 F. 3d 962 (1999). The Court of Appeals affirmed, noting at the outset its two-part analysis for qualified immunity questions. First, the Court of Appeals considers “whether the law governing the official’s Conduct was clearly established.” Id., at 967. If it was not, that ends the matter, and the official is entitled to immunity. If, however, the law was clearly established when the conduct occurred, the Court of Appeals’ second step is to determine if a reasonable officer could have believed, in light of the clearly established law, that his conduct was lawful. Ibid. As to the first step of its analysis, the court observed that Graham v. Connor, 490 U. S. 386 (1989), sets forth the objective reasonableness test for evaluating excessive force claims, a principle the Court of Appeals concluded was clearly established for qualified immunity purposes. The court then concluded that the second step of the qualified immunity inquiry and the merits of the Fourth Amendment excessive force claim are identical, since both concern the objective reasonableness of the officer’s conduct in light of the circumstances the officer faced on the scene. 194 F. 3d, at 968. On this reasoning, summary judgment based on qualified immunity was held inappropriate. Id., at 968-969.
Saucier, represented by the Government of the United States; sought review here, arguing the Court of Appeals erred in its view that the qualified immunity inquiry is the same as the constitutional inquiry and so becomes superfluous or duplicative when excessive force is alleged. We granted certiorari, 531 U. S. 991 (2000).
II
The Court of Appeals ruled first that the right was clearly established; and second that the reasonableness inquiry into excessive force meant that it need not consider aspects of qualified immunity, leaving the whole matter to the jury. 194 F. 3d, at 967. This approach cannot be reconciled with Anderson v. Creighton, 483 U. S. 635 (1987), however, and was in error in two respects. As we shall explain, the first inquiry must be whether a constitutional right would have been violated on the facts alleged; second, assuming the violation is established, the question whether the right was clearly established must be considered on a more specific level than recognized by the Court of Appeals.
In a suit against an officer for an alleged violation of a constitutional right, the requisites of a qualified immunity defense must be considered in proper sequence. Where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive. Qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U. S. 511, 526 (1985). The privilege is “an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Ibid. As a result, “we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U. S. 224, 227 (1991) (per curiam).
A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? This must be the initial inquiry. Siegert v. Gilley, 500 U. S. 226, 232 (1991). In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law’s elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer’s conduct was unlawful in the circumstances of the case.
If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition;. and it too serves to advance understanding of the law and to allow officers to avoid the burden of trial if qualified immunity is applicable.
In this litigation, for instance, there is no doubt that Graham v. Connor, supra, clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Yet that is not enough. Rather, we emphasized in Anderson “that the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant,'sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” 483 U. S., at 640. The relevant, dis-positive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. See Wilson v. Layne, 526 U. S. 603, 615 (1999) (“[A]s we explained in Anderson, the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established”).
The approach the Court of Appeals adopted — to deny summary judgment any time a material issue of fact remains on the excessive force claim — could undermine the goal of qualified immunity to “avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.” Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate. See Malley v. Briggs, 475 U. S. 335, 341 (1986) (qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law”).
This is not to say that the formulation of a general rule is beside the point, nor is it to insist the courts must have agreed upon the precise formulation of the standard. Assuming, for instance, that various courts have agreed that certain conduct is a constitutional violation under facts not distinguishable in a fair way from the facts presented in the case at hand, the officer would not be entitled to qualified immunity based simply on the argument that courts had not agreed on one verbal formulation of the controlling standard.
The Court of Appeals concluded that qualified immunity is merely duplicative in an excessive force case, eliminating the need for the second step where a constitutional violation could be found based on the allegations. In Anderson, a warrantless search case, we rejected the argument that there is no distinction between the reasonableness standard for warrantless searches and the qualified immunity inquiry. We acknowledged there was some “surface appeal” to the argument that, because the Fourth Amendment’s guarantee was a right to be free from “unreasonable” searches and seizures, it would be inconsistent to conclude that an officer who acted unreasonably under the constitutional standard nevertheless was entitled to immunity because he “ ‘reasonably’ acted unreasonably.” 483 U. S., at 643. This superficial similarity, however, could not overcome either our history of applying qualified immunity analysis to Fourth Amendment claims against officers or the justifications for applying the doctrine in an area where officers perform their duties with considerable uncertainty as to “whether particular searches or seizures comport with the Fourth Amendment.” Id., at 644. With respect, moreover, to the argument made in Anderson that an exception should be made for Fourth Amendment cases, we observed “the heavy burden this argument must sustain to be successful,” since “the doctrine of qualified immunity reflects a balance that has been struck ‘across the board.’” Id., at 642 (quoting Harlow v. Fitzgerald, supra, at 821). We held that qualified immunity applied in the Fourth Amendment context just as it would for any other claim of official misconduct. 483 U. S., at 644.
Faced, then, with the heavy burden of distinguishing Anderson and of carving out an exception to the typical qualified immunity analysis applied in other Fourth Amendment contexts, the primary submission by respondent in defense of the Court of Appeals’ decision is that our decision in Graham v. Connor, 490 U. S. 386 (1989), somehow changes matters. Graham, in respondent’s view, sets forth an excessive force analysis indistinguishable from qualified immunity, rendering the separate immunity inquiry superfluous and inappropriate. Respondent asserts that, like the qualified immunity analysis applicable in other contexts, the excessive force test already affords officers latitude for mistaken beliefs as to the amount of force necessary, so that “Graham has addressed for the excessive force area most of the concerns expressed in Anderson.” Brief for Respondents 7. Respondent points out that Graham did not address the interaction of excessive force claims and qualified immunity, since the issue was not raised, see 490 U. S., at 399, n. 12; and respondent seeks to distinguish Anderson on the theory that the issue of probable cause implicates evolving legal standards and resulting legal uncertainty, a subject raising recurrent questions of qualified immunity. By contrast, respondent says, excessive force is governed by the standard established in Graham, a standard providing ample guidance for particular situations. Finally, respondent adopts the suggestion made by one Court of Appeals that the relevant distinction is that probable cause is an ex post inquiry, whereas excessive force, like qualified immunity, should be evaluated from an ex ante perspective. See Finnegan v. Fountain, 915 F. 2d 817, 824, n. 11 (CA2 1990).
These arguments or attempted distinctions cannot bear the weight respondent seeks to place upon them. Graham did not change the qualified immunity framework explained in Anderson. The inquiries for qualified immunity and excessive force remain distinct, even after Graham.
In Graham, we held that claims of excessive force in the context of arrests or investigatory stops should be analyzed under the Fourth Amendment’s “objective reasonableness standard,” not under substantive due process principles. 490 U. S., at 388, 394. Because “police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation,” id., at 397, the reasonableness of the officer’s belief as to the appropriate level of force should be judged from that on-scene perspective, id., at 396. We set out a test that cautioned against the “20/20 vision of hindsight” in favor of deference to the judgment of reasonable officers on the scene. Id., at 393, 396. Graham sets forth a list of factors relevant to the merits of the constitutional excessive force claim, “requiring] careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id., at 396. If an officer reasonably, but mistakenly, believed that a suspect was likely to fight back, for instance, the officer would be justified in using more force than in fact was needed.
The qualified immunity inquiry, on the other hand, has a further dimension. The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly, perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.
Graham does not always give a clear answer as to whether a particular application of force will be deemed excessive by the courts. This is the nature of a test which must accommodate limitless factual circumstances. This reality serves to refute respondent’s claimed distinction between excessive force and other Fourth Amendment contexts; in both spheres the law must be elaborated from case to case. Qualified immunity operates in this case, then, just as it does in others, to protect officers from the sometimes “hazy border between excessive and acceptable force,” Priester v. Riviera Beach, 208 F. 3d 919, 926-927 (CA112000), and to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.
Graham and Anderson refute the excessive force/probable cause distinction on which much of respondent’s position seems to depend. The deference owed officers facing suits for alleged excessive force is not different in some qualitative respect from the probable-cause inquiry in Anderson. Officers can have reasonable, but mistaken, beliefs as to the facts establishing the existence of probable cause or exigent circumstances, for example, and in those situations courts will not hold that they have violated the Constitution. Yet, even if a court were to hold that the officer violated the Fourth Amendment by conducting an unreasonable, war-rantless search, Anderson still operates to grant officers immunity for reasonable mistakes as to the legality of their actions. The same analysis is applicable in excessive force cases, where in addition to the deference officers receive on the underlying constitutional claim, qualified immunity can apply in the event the mistaken belief was reasonable.
The temporal perspective of the inquiry, whether labeled as ex ante or ex post, offers no meaningful distinction between excessive force and other Fourth Amendment suits. Graham recognized as much, reviewing several of our probable-cause and search warrant cases, then stating that “[w]ith respect to a claim of excessive force, the same standard of reasonableness at the moment applies.” 490 U. S., at 396 (discussing use of force under Terry v. Ohio, 392 U. S. 1 (1968); probable cause to arrest under Hill v. California, 401 U. S. 797 (1971); and search warrant requirements under Maryland v. Garrison, 480 U. S. 79 (1987)); see also Hunter v. Bryant, 502 U. S., at 228 (“Probable cause existed if ‘at the moment the arrest was made . . . the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing’” a crime had been committed (quoting Beck v. Ohio, 379 U. S. 89, 91 (1964))). Excessive force claims, like most other Fourth Amendment issues, are evaluated for objective reasonableness based upon the information the officers had when the conduct occurred.
III
The case was presented to the Court of Appeals on the assumption that respondent’s seizure and brief detention did not violate clearly established First Amendment privileges and did not violate the Fourth Amendment right to be free from arrest without probable cause, as distinct from the force used to detain. The sole question, then, is whether the force used violated a clearly established Fourth Amendment protection so that petitioner was not entitled to immunity.
Our instruction to the district courts and courts of appeals to concentrate at the outset on the definition of the constitutional right and to determine whether, on the facts alleged, a constitutional violation could be found is important. As we have said, the procedure permits courts in appropriate cases to elaborate the constitutional right with greater degrees of specificity. Because we granted cer-tiorari only to determine whether qualified immunity was appropriate, however, and because of the limits imposed upon us by the questions on which we granted review, we will assume a constitutional violation could have occurred under the facts alleged based simply on the general rule prohibiting excessive force, then proceed to the question whether this general prohibition against excessive force was the source for clearly established law that was contravened in the circumstances this officer faced. There was no contravention under this standard. Though it is doubtful that the force used was excessive, we need not rest our conclusion on that determination. The question is what the officer reasonably understood his powers and responsibilities to be, when he acted, under clearly established standards.
Respondent’s excessive force claim for the most part depends upon the “gratuitously violent shove” allegedly received when he was placed into the van, although respondent notes as well that the alleged violation resulted from the “totality of the circumstances,” including the way he was removed from the speaking area. See Brief for Respondents 3, n. 2.
These circumstances, however, disclose substantial grounds for the officer to have concluded he had legitimate justification under the law for acting as he did. In Graham we noted that “[o]ur Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” 490 U. S., at 396. A reasonable officer in petitioner’s position could have believed that hurrying respondent away from the scene, where the Vice President was speaking and respondent had just approached the fence designed to separate the public from the speakers, was within the bounds of appropriate police responses.
Petitioner did not know the full extent of the threat respondent posed or how many other persons there might be who, in concert with respondent, posed a threat to the security of the Vice President. There were other potential protesters in the crowd, and at least one other individual was arrested and placed into the van with respondent. In carrying out the detention, as it has been assumed the officers had the right to do, petitioner was required to recognize the necessity to protect the Vice President by securing respondent and restoring order to the scene. It cannot be said there was a clearly established rule that would prohibit using the force petitioner did to place respondent into the van to accomplish these objectives.
As for the shove respondent received when he was placed into the van, those same circumstances show some degree of urgency. We have approved the observation that “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.” Ibid, (citations omitted). Pushes and shoves, like other police conduct, must be judged under the Fourth Amendment standard of reasonableness.
In the circumstances presented to this officer, which included the duty to protect the safety and security of the Vice President of the United States from persons unknown in number, neither respondent nor the Court of Appeals has identified any case demonstrating a clearly established rule prohibiting the officer from acting as he did, nor are we aware of any such rule. Our conclusion is confirmed by the uncontested fact that the force was not so excessive that respondent suffered hurt or injury. On these premises, petitioner was entitled to qualified immunity, and the suit should have been dismissed at an early stage in the proceedings.
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.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
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songer_civproc1
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54
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
STATE OF ILLINOIS, Plaintiff-Appellee, v. SANGAMO CONSTRUCTION CO. and J. L. Simmons Company, Inc., Defendants-Appellants.
Nos. 80-1761, 80-2275.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 19, 1981.
Decided July 30, 1981.
Richard A. Makarski, Chicago, 111., Paul E. Adami, Springfield, 111., for defendants-appellants.
Stephen P. Juech, Asst. Atty. Gen., Chicago, 111., for plaintiff-appellee.
Before FAIRCHILD, PELL and SPRECHER, Circuit Judges.
SPRECHER, Circuit Judge.
This appeal concerns the propriety of the district court’s award of attorneys’ fees and costs, including expert witness fees, to the Illinois Attorney General who successfully pursued this private antitrust action on behalf of the State of Illinois in its proprietary capacity. We affirm the award of attorneys’ fees, but reverse and remand the award of costs to be reduced to the extent the amount of expert witness fees awarded exceeds the statutory witness fees set forth in 28 U.S.C. § 1821.
I
Illinois, in its proprietary capacity, brought this suit under Section 1 of the Sherman Act, 15 U.S.C. § 1, and Section 4 of the Clayton Act, 15 U.S.C. § 15, against defendants, Sangamo Construction Company and J. L. Simmons Co., Inc., alleging a conspiracy to allocate certain highway construction projects put out for public bids by Illinois on June 23,1970. At the conclusion of trial, the jury returned a verdict in favor of Illinois. Although Illinois had requested damages of $85,720, the jury awarded only $25,000 in damages. The district court, pursuant to Section 4 of the Clayton Act, trebled the actual damages and awarded Illinois $75,000 in total damages.
The district court also ruled that, pursuant to Section 4 of the Clayton Act, Illinois was entitled to costs of suit, including reasonable attorneys’ fees. Consequently, the court held an evidentiary hearing on Illinois’ request for an itemization of attorneys’ fees and costs. The court granted Illinois’ entire request for attorneys’ fees totaling $63,285. The court also awarded $16,822.36 as costs of suit, including $5,471.91 for deposition charges, $1,501.47 for copying, $56.00 for charts, $9,777.98 for expert witness costs, and $15.00 for filing fees.
Although defendants filed two notices of appeal, the first from the judgment entered on the jury verdict and the second from the final judgment awarding attorneys’ fees and costs, the only issues urged on this appeal concern the award of attorneys’ fees and costs to the State of Illinois.
II
Section 4 of the Clayton Act, 15 U.S.C. § 15, entitles a successful private litigant to “recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney’s fee.” Courts uniformly have held that the award of attorneys’ fees and costs to the successful plaintiff under Section 4 is mandatory. See Baughman v. Cooper-Jarrett, Inc., 530 F.2d 529, 531 n.2 (3rd Cir.), cert. denied, 429 U.S. 825, 97 S.Ct. 78, 50 L.Ed.2d 87 (1976); Knutson v. Daily Review, Inc., 479 F.Supp. 1263, 1267 (N.D.Cal.1979); see also Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 415 n.5, 98 S.Ct. 694, 697, 54 L.Ed.2d 648 (1978). Furthermore, the determination of what constitutes reasonable attorneys’ fees is a matter relegated, in the first instance, to the sound discretion of the trial court, guided by proper standards and due consideration of the unique circumstances of each case. See infra II — C.
Defendants argue that these accepted rules for awarding attorneys’ fees under Section 4 of the Clayton Act do not apply in this case of first impression involving an award of fees to a state represented by its Attorney General. First, defendants assert that an award of attorneys’ fees to a state, which sues in its proprietary capacity and is represented by its Attorney General, is inconsistent with the policy underlying Section 4’s provision for attorneys’ fees. Defendants argue, in the alternative, that if a state represented by its Attorney General is entitled to attorneys’ fees, then the award of attorneys’ fees should be limited to the actual costs incurred by the state, i. e., the salaries of the state lawyers. Finally, defendants argue that the district court abused its discretion by awarding Illinois attorneys’ fees which exceed the single damages award.
We disagree with defendants’ reasoning. For the reasons detailed below, we affirm the award of attorneys’ fees to Illinois as appropriate under Section 4 and within the sound discretion of the district court.
A
It is well-established that a state is a “person” for purposes of establishing a cause of action and jurisdiction to sue under Section 4 of the Clayton Act. Hawaii v. Standard Oil Co., 405 U.S. 251, 261, 92 S.Ct. 885, 890, 31 L.Ed.2d 184 (1972); Georgia v. Evans, 316 U.S. 159, 62 S.Ct. 972, 86 L.Ed. 1346 (1942). But, defendants argue that a state, represented by its Attorney General, should not be considered a “person” entitled to attorneys’ fees and costs under the last clause of Section 4 which entitles a prevailing party to “cost of suit, including a rea^ sonable attorney’s fee.”
A textual analysis of Section 4 lends no support to defendant’s reasoning. Section 4 states that “[a]ny person who shall be injured... shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” 15 U.S.C. § 15. Nothing in the text suggests that a state, which is a “person” for purposes of suing for treble damages, is not a “person” for purposes of the next clause which allows recovery of costs and attorneys’ fees. The “statute makes no distinction between the applicability of the treble damages and attorney’s fees provisions therein.” Knutson v. Daily Review, Inc., 479 F.Supp. at 1267.
Failing to find textual support in Section 4 for their position, defendants argue that Section 4’s silence as to whether attorneys’ fees should be awarded to states indicates that Congress did not intend states to receive attorneys^ fees for suits brought under Section 4. Defendants point first to 15 U.S.C. § 15c(a)(2), which explicitly allows a state to recover reasonable attorneys’ fees following successful prosecution of a parens patriae antitrust suit. Defendants then point to 15 U.S.C. § 15a, which limits the recovery by the United States in antitrust actions brought for damages sustained in its proprietary capacity to actual damages and costs of suit, but does not provide for recovery of reasonable attorneys’ fees. From this brief statutory review, defendants conclude that the absence of a statutory provision explicitly awarding attorneys’ fees to a state which sues for damages sustained in its proprietary capacity means that Congress did not intend states to recover attorneys’ fees in suits under Section 4.
Defendants’ reasoning is unpersuasive. First, the attempted comparison between 15 U.S.C. § 15a (actions by United States for damages sustained in its proprietary capacity) and 15 U.S.C. § 15 (actions by private parties, including states in their proprietary capacity) is inappropriate. Congress enacted 15 U.S.C. § 15a in order to allow recovery of actual damages sustained by the United States. City of Burbank v. General Electric Co., 329 F.2d 825, 830 (9th Cir. 1964); see S.Rep. No. 619, 84th Cong., 1st Sess. 3 (1955), reprinted in [1955] U.S.Code Cong. & Ad.News 2328, 2330. The recovery of damages by the United States was never intended as a major tool in federal enforcement of the antitrust laws. The United States wields primary and substantial enforcement power through other criminal and civil remedies provided by the antitrust laws. On the other hand, actions under 15 U.S.C. § 15 are private enforcement actions wherein the incentive for enforcement created by an award of attorneys’ fees is appropriate. In other words, 15 U.S.C. § 15a and 15 U.S.C. § 15 were designed to address different concerns, and Congress’ exclusion of attorneys’ fees in actions by the United States under § 15a does not reflect Congress’ desire to deny attorneys’ fees to states suing under 15 U.S.C. § 15. Indeed, we agree with the district court that Congress recognized the distinction between actions by states and those by the United States when it authorized states to bring actions under 15 U.S.C. § 15c(a)(2) as parens patriae and to collect reasonable attorneys’ fees for doing so. We think it is equally logical to conclude that Congress intended states, like all other private parties, to collect reasonable attorneys’ fees for successful antitrust actions brought under Section 4 of the Clayton Act, 15 U.S.C. § 15.
Finally, defendants assert that an award of attorneys’ fees to a state represented by its Attorney General is inconsistent with the policy and purposes behind Section 4’s provision for recovery of treble damages, plus costs and attorneys’ fees. We agree with defendants that the primary purposes of the Section 4 fee award are 1) to encourage private enforcement of the antitrust laws, 2) to insure that the cost of doing so does not diminish the treble damages award, and 3) to deter violations of the antitrust laws by requiring the “payment of that fee by a losing defendant as part of his penalty for having violated the antitrust laws.” Farmington Dowel Products Co. v. Forster Mfg. Co., Inc., 421 F.2d 61, 90 (1st Cir. 1969). Defendants, however, contend that the Attorney General’s statutory obligation “[t]o institute and prosecute all actions and proceedings in favor of or for the use of the state,” Ill.Rev.Stat. ch. 14, § 4, is sufficient incentive to induce Illinois to bring antitrust actions for damages suffered in its proprietary capacity. Moreover, defendants reason that any possible incentive resulting from recovery of attorneys’ fees is remote and speculative because any monies awarded to the Attorney General as attorneys’ fees are turned over to the Illinois general fund, and are not retained for the Attorney General’s budget.
Defendants’ reasoning, however, is once again wide of the mark. First, although the Illinois Attorney General is statutorily charged with the responsibility of prosecuting all actions in favor of Illinois, this statutory responsibility is not self-executing. There is no assurance that the Attorney General will, can, or must prosecute each and every possible legal action that remotely offers the opportunity for relief| in favor of Illinois. Political, legal, or financial considerations may be involved in the complex decision whether to bring an antitrust action. Other legal responsibilities and commitments of the Attorney General’s staff may all but preclude an aggressive antitrust enforcement program. See 967 Antitrust & Trade Reg. Rep. (BNA) at D-6 (June 5, 1980) (state antitrust enforcement efforts dwindling in face of federal funds cut-off). Therefore, we think it is apparent that the prospect of recovering the costs of suit and reasonable attorneys’ fees will provide some incentive for the Attorney General to enforce the antitrust laws on behalf of Illinois.
Second, although pursuant to Ill.Rev.Stat. ch. 14, § 4, any attorneys’ fees awarded to Illinois go to the Illinois general fund and do not go directly to reimburse the Attorney General’s office for its expenses, we do not accept defendants’ argument that, therefore, the award of attorneys’ fees does not act as an incentive for enforcement of the antitrust laws by Illinois. In this age of budget-cutting and cost-consciousness in government, the cost-effectiveness of state antitrust enforcement efforts very likely will be an important factor when funding proposals for the Antitrust Division are considered. As pointed out by the amici curiae brief filed on behalf of 43 states, “appropriations for future antitrust enforcement efforts will be based significantly on past effectiveness and past effectiveness is measured in large degree by monetary recoveries, including damages and attorneys fees.” We conclude that recovery of reasonable attorneys’ fees by Illinois will create greater incentives for state enforcement of the antitrust laws against parties who, by their anticompetitive acts, cause direct injury to the state.
Finally, viewing this issue from the defendants’ perspective, we see no justifiable reason to distinguish between private parties and states for purposes of awarding successful plaintiffs reasonable attorneys’ fees. Defendants bear the burden of paying reasonable attorneys’ fees if their anti-competitive acts injure private plaintiffs. We see no policy rationale or congressional intent to lighten defendants’ burden when, by chance or by design, their anticompetitive practices injure the state directly in its proprietary capacity. Consequently, we conclude that Illinois, represented by its Attorney General, is entitled to reasonable attorneys’ fees under Section 4 of the Clayton Act.
B
The court below held that “plaintiff’s attorneys’ fees, therefore, are to be assessed with reference to the fee a private practioner [sic] with comparable experience and skill would charge.” Illinois v. Sangamo Construction Co., No. 77-3004, slip op. at 6 (C.D.Ill. Aug. 21, 1980). The court accepted the figure of $63,285 for attorneys’ fees after reviewing the number of hours expended on this case by each assistant Attorney General and multiplying those hours by an hourly rate the court found to be acceptable.
Defendants argue that, assuming Illinois is entitled to attorneys’ fees, the amount of such fees should be limited to the actual cost to the state of the attorneys involved, i. e., that portion of the attorneys’ salaries reasonably devoted to the conduct of this litigation. See In re Master Key Antitrust Litigation, 1978-1 Trade Cases $ 61,887 at 73,726-27 (allowing compensation to Attorneys General less than that of private counsel, but above average cost to states). According to defendants, if one accepts plaintiff’s calculations of the attorney hours involved in this case, and compares these with the annual workload and salaries of the attorneys, Illinois paid just $13,993.90 in salaries for time expended on this case. Although defendants acknowledge that reasonable overhead expenses probably are allowable, they argue that Illinois’ failure to introduce any evidence regarding overhead expenses limits Illinois’ recovery to the salaries of the attorneys, $13,993.90. Defendants argue that any recovery of fees above the cost to Illinois of conducting the litigation would constitute an unnecessary windfall to Illinois and an additional penalty on defendants, and would not further the purposes of Section 4 of the Clayton Act.
We reject defendants’ reasoning and hold that, for an award of reasonable attorneys’ fees under Section 4 of the Clayton Act to a state represented by its Attorney General, the use of generally prevailing market rates for attorneys of comparable skill, experience, and reputation is proper. Several considerations lead us to this conclusion. First, in numerous court approved settlements of private antitrust class actions, district courts have awarded fees to state Attorneys General based on generally prevailing market rates. See, e. g., In re Chicken Antitrust Litigation, 1980-2 Trade Cases ¶ 63,485 at 76,558 (N.D.Ga.1980); In re Armored Car Antitrust Litigation, 472 F.Supp. 1357, 1387 (N.D.Ga.1979); In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 410 F.Supp. 706, 717 (D.Minn.1975); Liebman v. J. W. Petersen Coal & Oil Co., 63 F.R.D. 684, 694 (N.D.Ill.1974).
Second, the entitlement to reasonable attorneys’ fees is that of the plaintiff, not of his attorney. International Travel Arrangers, Inc. v. Western Airlines, Inc., 623 F.2d 1255, 1274 (8th Cir.), cert. denied, 449 U.S. 1063, 101 S.Ct. 787, 66 L.Ed.2d 605 (1980). The amount plaintiff actually pays his attorney is irrelevant, since the determination of what is a “reasonable” fee is to be made without reference to any prior agreement between the parties. Farmington Dowel Products Co., 421 F.2d at 90; Milwaukee Towne Corp. v. Loew’s, Inc., 190 F.2d 561, 570 (7th Cir. 1951), cert. denied, 342 U.S. 909, 72 S.Ct. 303, 96 L.Ed. 680 (1952). We, therefore, fail to see any reason to distinguish between public counsel and private counsel in determining what is a “reasonable” fee. Furthermore, we think the reasoning of this Circuit’s recent decisions awarding successful civil rights plaintiffs attorneys’ fees pursuant to 42 U.S.C. § 1988 based on market rates, even though plaintiffs are represented by publicly supported counsel or on a pro bono basis, is equally applicable to awards under Section 4 of the Clayton Act. See Mary v. Ramsden, 635 F.2d 590, 601-02 (7th Cir. 1980); Brown v. Stanton, 617 F.2d 1224, 1233 (7th Cir. 1980).
Third, reliance on generally prevailing market rates for attorneys with comparable skill, experience, and reputation simplifies the already difficult task district courts face in awarding reasonable attorneys’ fees. Defendants’ approach would require courts to investigate the overhead and incidental expenses incurred by a state in connection with the prosecution of an antitrust suit. Such an inquiry would be a cumbersome means for arriving at a tentative figure of reasonableness. It is far better to rely upon generally prevailing market rates, which take into consideration factors such as overhead and support personnel. The initial use of an objective standard of reasonableness, i. e., generally prevailing market rates, is far preferable to extensive judicial scrutiny of private fee arrangements or of the internal economics of the Attorney General’s office.
Finally, the use of prevailing market rates does not impose an additional burden on defendants beyond that contemplated by Section 4. Defendants concede that prevailing market rates have been awarded where states have chosen to be represented by private counsel rather than by their Attorneys General. See, e. g., In re Chicken Antitrust Litigation, 1980-2 Trade Cases ¶ 63,485 at 76,546; In re Master Key Antitrust Litigation, 1978-1 Trade Cases ¶ 61,-887 at 73,728; In re Gypsum Cases, 386 F.Supp. 959, 985 n.21 (N.D.Cal.1974), aff’d, 565 F.2d 1123 (9th Cir. 1977). From the defendants’ perspective, it is fortuitous that Illinois chose to litigate this action through its own Attorney General’s office rather than relying on private counsel. There is no additional burden or penalty placed on defendants because Illinois receives reasonable attorneys’ fees based on market rates. We commend the State of Illinois for developing a talented antitrust division within its Attorney General’s office that is capable of prosecuting complex antitrust cases in a competent and public-minded manner. Indeed, given the extreme reasonableness of the fees requested by Illinois, we suggest defendants should be pleased Illinois did not choose to retain more expensive, private antitrust counsel.
C
We now confront the task of determining whether the $63,285 fee award is reasonable. In doing so, we acknowledge that determination of what constitutes a reasonable attorneys’ fee is a matter that must be judged on the facts and circumstances of each case and, consequently, is a matter that rests peculiarly within the sound discretion of the trial judge. Locklin v. Day-Glo Color Corp., 378 F.Supp. 423, 427 (N.D.Ill.1974); In re Clark Oil & Refining Corp. Antitrust Litigation, 422 F.Supp. 503, 510 (E.D.Wis.1977). The trial judge is in the best position to assess the skill and competency of counsel, the novelty or difficulty of the case, the benefits of the result achieved, and the reasonableness of the time counsel devoted to the case. See Ellis v. Flying Tiger Corp., 504 F.2d 1004, 1006 (7th Cir. 1972). Consequently, we will disturb the district court’s award of attorneys’ fees only if we find an abuse of the district court’s broad discretion in determining what is reasonable in light of the particular circumstances of this case. Milwaukee Towne Corp., 190 F.2d at 571.
In assessing reasonable attorneys’ fees, the trial court is to consider the factors set forth in Waters v. Wisconsin Steel Works, 502 F.2d 1309, 1322 (7th Cir. 1974), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976). As we stated there, the court should begin by determining the reasonable hours devoted to the litigation and the reasonable billing rate for that work. The court should then weigh the various factors set forth in Waters in determining whether any special circumstances justify an adjustment from “hours spent times billing rate.” Id.
In the present case, the district court concluded that $63,285 should be awarded to Illinois as reasonable attorneys’ fees. We find no abuse of discretion in the district court’s methodology or conclusion.
First, the court awarded Illinois compensation for just 1,140 attorney hours. In presenting its fee request, Illinois conscientiously excluded from its request the hours reflecting duplication of efforts by the three assistant Attorneys General involved, approximately 295 hours reflecting travel by attorneys, all hours of the senior supervising attorneys, all hours associated with preparing and litigating the fee request, and all hours of paralegals, law students, and computer personnel. Even though Illinois had the benefit of a prior criminal conviction of defendants for bid-rigging, defendants strenuously litigated the issues of liability and damages. The district court specifically found that the hours requested by Illinois were not excessive. Illinois v. Sangamo Construction Co., No. 77-3004, slip op. at 5 (C.D.Ill. Aug. 21, 1979). Consequently, we cannot conclude that the district court’s award of compensation for 1,140 hours reflects an abuse of discretion.
Second, the district court awarded fees of $50, $55, and $65 per hour for the three assistant Attorneys General involved in the litigation. The district court specifically found “that the plaintiff’s attorneys conducted both pretrial and trial proceedings in a competent, lawyer-like manner.... ” Id In addition, the briefs submitted by Illinois to this Court certainly reflect very high-caliber legal work. In light of such findings, the hourly rates utilized by the district court certainly are modest fees for complex litigation. We, therefore, conclude that the rates are reasonable and accurately reflect the quality of plaintiff’s counsel.
Multiplying the hours for each attorney by the applicable hourly rate, the court arrived at the figure of $63,285. No adjustment for special circumstances was made, and we find no abuse of discretion in the court’s refusal to do so. Consequently, we find that the district court properly weighed the request for fees and the underlying documentation, and that the award of $63,285 is reasonable.
Ill
The district court, pursuant to Section 4 of the Clayton Act, awarded Illinois $16,-822.36 as costs of suit. The costs included $5,471.91 for deposition expenses, $1,501.47 for copying charges, $9,777.98 for expert witness fees, $56.00 for charts used at trial, and $15.00 for the filing fee. Defendants do not challenge the costs for charts or the filing fee. But, defendants argue that the copying and deposition charges should be reduced significantly and the expert witness fees eliminated completely. We agree in part with defendants.
First, “[wjithin the range of items of cost recognized by law, trial courts have broad discretion, especially where factual evaluations are involved.” Fey v. Walston & Co., Inc., 493 F.2d 1036, 1056 (7th Cir. 1974). Assuming a given expense is an allowable cost item, the district court’s determination that the cost was reasonably necessary to the conduct of the litigation and that the amount of the cost is reasonable will not be upset unless there is a clear abuse of discretion. See Farmer v. Arabian American Oil Co., 379 U.S. 227, 235, 85 S.Ct. 411, 416, 13 L.Ed.2d 248 (1964); 6 Moore’s Federal Practice, H 54.70[5] at 1317. Consequently, our review must focus on two issues: 1) are the expenses recoverable “costs”? and 2) are the costs reasonable, both in amount and necessity? Our inquiry is much broader with respect to the first question than the second. Once we have decided whether an expense is a recoverable cost, the trial court is in the best position to determine the reasonableness of the cost. We turn first to the difficult question of whether expert witness fees constitute recoverable costs in private antitrust suits brought under Section 4 of the Clayton Act.
A
This Court has never squarely addressed the question of whether costs incurred for expert witnesses and consultants are recoverable under Section 4 of the Clayton Act. Indeed, our research indicates that this question has received rather summary treatment by most trial and appellate courts. There is general confusion regarding the relationship among the various statutes and court rules authorizing an award of costs. Resolution of this confusion requires integration of the cost provisions of Section 4 of the Clayton Act, Rule 54(d) of the Federal Rules of Civil Procedure, 28 U.S.C. § 1920, and 28 U.S.C. § 1821.
Rule 54(d) of the Federal Rules of Civil Procedure grants the district court, in the absence of other statutory authority, discretionary authority to award costs to the prevailing party. But not all expenses incurred by a party in connection with a lawsuit constitute recoverable costs. Indeed, major expenses such as attorneys’ fees, investigatory services, and most travel and subsistence expenses generally are not recoverable “costs”. See 6 Moore’s Federal Practice ¶ 54.70[1] at 1301-02; Wahl v. Carrier Mfg. Co., Inc., 511 F.2d 209, 216-18 (7th Cir. 1975). Courts are to award, except in limited exceptional situations, only those expenses specifically recognized by statute. See 6 Moore’s Federal Practice 1154.77[1] at 1701-02.
Courts applying Rule 54(d) look first to the general taxation of costs statute, 28 U.S.C. § 1920. Wahl, 511 F.2d at 215. Among the expenses allowable under § 1920 are “[f]ees and disbursements for... witnesses.” The majority of courts interpreting the provision for witness fees in § 1920, including the Seventh Circuit, hold that recovery of fees paid to expert witnesses is limited to the statutory costs specified in 28 U.S.C. § 1821. In Adams v. Carlson, 521 F.2d 168, 172 (7th Cir. 1975), this court stated:
The amount which the plaintiffs may recover for witness expenses is determined by 28 U.S.C. § 1821. That section basically provides a statutory allowance for travel and subsistence. Where, as here, the witnesses involved are expert witnesses, the prevailing party can recover only the statutory amounts prescribed in § 1821 and not additional expert witness fees.
See also Henkel v. Chicago, St. Paul, Minn. & Omaha Ry. Co., 284 U.S. 444, 446, 52 S.Ct. 223, 224, 76 L.Ed. 386 (1932) (“Under these provisions [the predecessor of 28 U.S.C. § 1821], additional amounts paid as compensation, or fees, to expert witnesses cannot be allowed or taxed as costs in cases in the federal courts.”); 6 Moore’s Federal Practice ¶ 54.77[5.-3] at 1734 n.2 and cases cited therein.
We believe that limiting witness costs to those specified in 28 U.S.C. § 1821 is the correct approach. Congress stated in § 1920 that costs of suit include fees and disbursements for witnesses. Congress also enacted § 1821, which specifies allowable fees and disbursements for witnesses. In enacting this statutory scheme, Congress made no special provision for a private party’s witnesses who are classified as expert witnesses. But Congress did specify that costs include the expense of court-appointed expert witnesses. 28 U.S.C. § 1920(6). We conclude that the congressional silence regarding privately retained expert witnesses means that expenses incurred by private parties to retain expert witnesses are recoverable as costs under § 1920 only to the extent specified in § 1821. We confirm, therefore, that under Rule 54(d) and 28 U.S.C. § 1920 a party may recover as costs of suit for expert witnesses only the amounts specified in 28 U.S.C. § 1821.
The question we must now confront is whether “cost of suit” in Section 4 of the Clayton Act means the same as “costs of suit” in Rule 54(d) and 28 U.S.C. § 1920. Almost every court that has confronted this question has concluded, often without discussion, that recovery of costs under Section 4 of the Clayton Act is limited to those costs recoverable under Rule 54(d) and § 1920. Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 309 n.75 (2d Cir. 1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980); Ott v. Speedwriting Publishing Co., 518 F.2d 1143, 1149 (6th Cir. 1975); Trans World Airlines, Inc. v. Hughes, 449 F.2d 51, 81 (2d Cir. 1971), rev’d on other grounds, 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973); Twentieth Century Fox Film Corp. v. Goldwyn, 328 F.2d 190, 223-24 (9th Cir.), cert. denied, 379 U.S. 880, 85 S.Ct. 143, 13 L.Ed.2d 87 (1964); 6 Moore’s Federal Practice, ¶ 54.71[3] at 1385; but see Pitchford Scientific Instruments Corp. v. PEPI, Inc., 440 F.Supp. 1175, 1178-79 (W.D.Pa.1977), aff’d mem., 582 F.2d 1275 (3rd Cir. 1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 242 (1979) (“cost of suit” interpreted to be more expansive than statutory court costs).
Most of these decisions rely in part upon the analysis of Straus v. Victor Talking Mach. Co., 297 F. 791, 806-07 (2d Cir. 1924), that was rejected by the district court in this case. In Straus, a private antitrust action under Section 7 of the Sherman Act and Section 4 of the Clayton Act, the Second Circuit held that the successful plaintiff was not entitled to recover as a cost of suit sums expended for stenographer’s minutes of the trial. In doing so, the court examined the significance of “cost of suit” in the Clayton Act as opposed to “costs of suit” in the Sherman Act. The court refused to give any significance to the use of the singular “cost” as opposed to the plural “costs”. The court stated that “if it had been intended that ‘cost of suit’ should mean anything different from ‘costs of suit,’ that intention would, in some manner, have been made clear.” 297 F. at 807. In addition, the court rejected plaintiff’s argument that “cost of suit” should refer to all expenses of litigation. The court reasoned that “if, under the Clayton Act, it had been intended to include the expenses ‘of suit,’ there would hardly seem to be any reason for adding the words ‘including a reasonable attorney’s fee,’ in view of the fact that an attorney’s fee would necessarily be a part of the expense incurred in conducting such a litigation.” Id. Consequently, the court held that since there was no provision for taxing stenographer’s expenses for cases at law in the federal courts, the expense was not recoverable under Section 4 of the Clayton Act.
We recognize that the Straus holding— that stenographer’s expenses are not recoverable costs — is no longer controlling, because now there is an explicit provision in § 1920 for stenographer’s expenses. See Wahl, 511 F.2d at 217. But, statutory modification of the Straus holding does not necessarily repudiate the logic of the underlying analysis. Just as the Straus court failed to see any significance between “cost” and “costs” in the antitrust statutes, so do we fail to see any significant difference between “cost of suit” in the Clayton Act and “costs of suit” in Rule 54(d) and 28 U.S.C. § 1920. The facial dissimilarities do not, without some clearer expression of congressional intent, justify an award of costs under Section 4 for items not recoverable under Rule 54(d). Nor have we found any expression of congressional intent behind Section 4 of the Clayton Act that would justify a departure from the accepted practice under Rule 54(d) for what are recoverable expenses.
It now is well-established that not all litigation expenses are recoverable costs of suit. We will not depart from this rule in order to fully reimburse antitrust litigants when we do not do so for equally deserving litigants who act as private attorneys general under other statutes. Our ruling does not disadvantage antitrust litigants. We merely integrate the rules regarding costs of suit and hold that, in the absence of a contrary congressional pronouncement, where courts are to depart from the traditional American rule that litigants bear their own litigation expenses, the departures shall be uniform. Therefore, we hold that recovery of specific expenses pursuant to Section 4 of the Clayton Act is governed by the recovery of costs under Rule 54(d) and 28 U.S.C. § 1920.
Since recovery of costs under Section 4 of the Clayton Act is limited to the expenses allowed under Rule 54(d) and 28 U.S.C. § 1920, we hold that the district court erred in awarding Illinois $9,777.98 as costs for expert witness fees. We cannot determine from the record before us what portion of Illinois’ request for expert witness expenses is recoverable under 28 U.S.C. § 1920 and 28 U.S.C. § 1821. We, therefore, remand to the district court for a determination of the amounts permissible under § 1821. See Adams v. Carlson, 521 F.2d at 172.
B
The district court awarded Illinois $5,471.91 for deposition charges. This amount included $2,405.36 for witness fees, of which $2,041.36 are expert witness fees, and $3,066.55 are transcript and reporter fees. Because of our decision that expert witness fees in excess of the statutory amount in 28 U.S.C. § 1821 are not recoverable costs, we reverse the district court’s award of $2,041.36 for expert witness fees paid in conjunction with depositions taken in this case. We remand to the district court for a determination of the proper amount of witness fees associated with the depositions that are recoverable pursuant to 28 U.S.C. § 1920(3) and 28 U.S.C. § 1821. The remaining $364.00 for witness fees is uncontested and is affirmed.
C
Defendants also contest the district court’s allowance of transcript and court reporter fees of $3,066.55. Although defendants acknowledge that fees for court reporters are allowable costs under 28 U.S.C. § 1920(2), defendants claim the district court abused its discretion in awarding such costs in this case. It is well established that “[t]he charges of the court reporter for transcripts of the trial and of depositions reasonably necessary for use in the case even though not used at trial are recoverable upon a proper showing as provided in 28 U.S.C. § 1924.” Wahl, 511 F.2d at 217; SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 180 (7th Cir.
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_genresp2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK and Frank Macchiarola, Chancellor of the City School District of the City of New York, Plaintiffs-Appellees, v. Shirley M. HUFSTEDLER, Secretary of the United States Department of Education, Herman R. Goldberg, Associate Commissioner, Equal Educational Opportunity Programs, United States Department of Education, and Roma Stewart, Director of the Office for Civil Rights, United States Department of Education, Defendants-Appellants.
No. 248, Docket 80-6050.
United States Court of Appeals, Second Circuit.
Argued Dec. 1, 1980.
Decided Feb. 4, 1981.
Gregg M. Mashberg, New York City (Allen G. Schwartz, Corp. Counsel, Joseph F. Bruno, Asst. Corp. Counsel, New York City, on brief), for plaintiffs-appellees.
Richard P. Caro, Asst. U. S. Atty., Brooklyn, N. Y. (Drew S. Days III, Asst. Atty. Gen., Washington, D. C., Edward R. Korman, U. S. Atty., E. D. New York, Brooklyn, N. Y., Jill Laurie Goodman, U. S. Dept. of Education, New York City, on brief), for defendants-appellants.
Before OAKES and MESKILL, Circuit Judges, and WERKER, District Judge.
Of the Southern District of New York, sitting by designation.
OAKES, Circuit Judge:
This appeal is yet another chapter in the litigation between the Board of Education of the City School District of New York City and what is now the Department of Education over the latter’s declaration of the former’s ineligibility for funds under the Emergency School Aid Act of 1972 (ESAA), 20 U.S.C. §§ 1601-1619 (current version at 20 U.S.C. §§ 3191-3207). In the ESAA I litigation, the Supreme Court, in affirming this court’s affirmance of the district court, held that discriminatory impact rather than discriminatory intent is the standard by which ineligibility under ESAA is to be measured because to treat as ineligible only those applicants who intend to perpetuate racial isolation would defeat the stated objective of ESAA, which is to end de facto as well as de jure segregation. The Supreme Court also held that a prima facie case of discriminatory impact may be made with a proper statistical study. The ESAA I cases sustained the Department of Health, Education, and Welfare’s (HEW’s) denial of a Board of Education ESAA assistance application that related to a grant of some $3.5 million for the fiscal year 1977-1978. Before instituting the ESAA I litigation, the Board did apply, pursuant to 20 U.S.C. § 1605(d)(1) (current version at 20 U.S.C. § 3196(c)(1)), for a waiver of HEW’s ineligibility determination. But the ESAA I litigation did not concern that application for a waiver, even though HEW had denied the application within approximately one month of the date the Board filed the ESAA I litigation.
HEW also denied the Board’s initial application, and the Board’s application for a waiver of ineligibility, for some $2.36 million in ESAA funds for the following fiscal year, 1978-1979. In connection with those denials, the Board filed the ESAA II litigation, in which the district court affirmed HEW’s finding of ineligibility but subsequently remanded the waiver application to HEW. The trial court’s remand was affirmed by a two-to-one panel majority of this court, with a petition for rehearing en banc denied. In ESAA II the panel majority of this court took the view that HEW’s approval of a voluntary plan to remedy discrimination in the school district could be sufficient to warrant issuance of a waiver; this court rejected HEW’s contention that its regulations forbade granting a waiver until the school district achieved the final teacher assignment goals in the remedial plan. Thus in ESAA II this court upheld the district court’s requirement that HEW issue a waiver upon a demonstration that the applicant has ceased its disqualifying activity and has provided acceptable assurances that such conduct will not reoccur. The court’s remand to HEW for a redetermination of the waiver application in connection with the 1978-1979 ESAA funds is still pending.
Encouraged by its success in ESAA II on the waiver application question with respect to fiscal 1978-1979, the Board filed this litigation, ESAA III, seeking to overturn the denial of its application for a waiver of HEW’s determination of ineligibility for fiscal year 1977-1978 funds — the ineligibility determination upheld in ESAA I. The United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, held for the Board of Education below, Board of Education v. Harris, 79 Civ. 3222 (E.D.N.Y. Feb. 21, 1980). Upon a trial on the merits under Federal Rule of Civil Procedure 65(a)(2), and upon the records in the earlier cases and in a related case, the district court granted the Board’s application for a declaration that HEW’s denial of the Board’s 1977-1978 fiscal year waiver application was improper and inconsistent with the governing federal statute. The court then remanded the waiver application for de novo consideration consistent with ESAA II, and ordered that the original approximately $3.5 million earmarked for the school district for the 1977-1978 fiscal year be preserved and set aside, pending reconsideration of the Board’s waiver application. We affirm.
DISCUSSION
On appeal the Department of Education makes two points. The first one, and a very simple one it is, is that this court erroneously decided ESAA II or, to put it euphemistically, that HEW’s denial of the Board’s application for a waiver for the 1978-1979 funds was not inconsistent with the statute. The answer to this contention is as simple as the point made. A panel of this court is bound by a previous panel’s opinion, until the decision is overruled en banc or by the Supreme Court. Although the author of this opinion dissented vehemently in ESAA II, he was unable to attract sufficient support from the active judges on the court of appeals for a rehearing en banc. Therefore, unless the Supreme Court grants certiorari and overturns ESAA II, that decision is the law of the circuit and we are bound to follow it. This does not mean that on remand, the Department of Education is bound by any factual determinations that it may make in the course of deciding the pending ESAA II remand concerning the Board’s application for a waiver for the 1978-1979 fiscal year funds. After all, the application for a waiver for 1977-1978 was made before the parties entered into the voluntary Memorandum of Understanding, which was the basis of the ESAA II litigation. But the principles of law stated by this court in ESAA II are binding, and under those principles neither the statute nor the regulations permit the denial of an application for a waiver on the ground that the effects of prior discrimination persist. Thus as a matter of law, the district court properly remanded to the Department of Education the Board’s application for a waiver for 1977-1978.
The second contention of the Department of Education is that the present action is barred by the final judgment in ESAA I — in other words, that as a matter of res judicata, the judgment sustaining the denial of the Board’s initial application for ESAA funds bars an action concerning the denial of the Board’s subsequent application for a waiver of the ineligibility determination. The question is whether the Board is merely asserting “a new ground for recovery,” see Brown v. Felsen, 442 U.S. 127, 133, 99 S.Ct. 2205, 2210, 60 L.Ed.2d 767 (1979). In this regard the Department of Education is correct that res judicata generally prevents litigation of “all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding,” id. at 131, 99 S.Ct. at 2209 (citing Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 378, 60 S.Ct. 317, 320, 84 L.Ed. 329 (1940)). The Department of Education argues that because the Board could readily have asserted in the ESAA I litigation the claim that its application for a waiver was improperly denied, it cannot now make that assertion. The heart of the Department of Education’s argument is the further contention that because ESAA I and this case involve the same funds, the claims for relief are necessarily the same.
In Herendeen v. Champion International Corp., 525 F.2d 130 (2d Cir. 1975), this court held that even though the same parties or their privies had been involved in a prior suit, there was not in that second suit the requisite identity of causes of action to call into play the doctrine of res judicata. We said in that diversity action that the proper criteria — most frequently cited by both this court and the New York courts — are
whether a different judgment in the second action would impair or destroy rights or interests established by the judgment entered in the first action, whether the same evidence is necessary to maintain the second cause of action as was required in the first, and whether the essential facts and issues in the second were present in the first.
Id. at 133-34 (footnotes omitted). The fact that the new cause of action could have been joined with the cause of action asserted in the earlier case was not found to be determinative. Id. at 135.
We think that the test outlined in Herendeen is applicable here. And applying that test to this case, we hold that res judicata does not bar litigation of HEW’s denial of the Board’s application for a waiver of ineligibility with respect to the 1977-1978 fiscal year funds. Congress has established two possible ways in which a school district can receive ESAA funds — by an initial application for the funds or by an application for a waiver of a denial of the initial application. See 20 U.S.C. § 1605(d)(1) (current version at 20 U.S.C. § 3196(c)(1)). In this case the Board is not seeking to redress the same injury that it sought to redress in ESAA I, which was the initial denial of the $3.5 million grant. Instead, the Board is seeking relief here from the denial of a waiver of that initial ineligibility determination. It is true that many of the same facts are in evidence in both cases, but the essence of ESAA I was the denial of the initial grant application, a denial based on a determination of ineligibility. The essence of the instant case, on the other hand, is the denial of the later-filed application for a waiver of ineligibility. A school district that is eligible for funds does not, of course, need a waiver; an applicant seeking a waiver concedes ineligibility for purposes of the waiver application. In these cases the finding of ineligibility based on discrimination turned on factors süch as the racial distribution of faculty among different schools in the district, see ESAA I litigation, while the determination whether to grant a waiver, at least under the ESAA II case, turns on factors such as the likelihood of faculty transfers meeting the goals set out in the Memorandum of Understanding and the good faith of the Board of Education in seeking to implement the remedial program embodied in that agreement.
The statutory scheme, as noted above, provides two distinct means of obtaining ESAA funds. As a matter of fair and equitable implementation of the law, it may be said that the sense of the statutory scheme is that a board of education should be permitted to litigate separately claims relating to denial of an initial application and claims relating to the denial of a waiver, see Restatement (Second) of Judgments § 61.2(l)(d) (Tent.Draft No. 5, 1978).
Judgment affirmed.
. Board of Educ. v. Harris, 444 U.S. 130, 100 S.Ct. 363, 62 L.Ed.2d 275 (1979), aff’g sub nom. Board of Educ. v. Califano, 584 F.2d 576 (2d Cir. 1978), aff’g 77 Civ. 1928 (E.D.N.Y. Apr. 18, 1978) (ESAA I).
. Id. at 151-52, 100 S.Ct. at 375.
. Board of Educ. v. Califano, 464 F.Supp. 1114 (E.D.N.Y. 1979) (ESAA II).
. Board of Educ. v. Harris, 622 F.2d 599 (2d Cir.), rehearing en banc denied, 622 F.2d 619 (2d Cir. 1979), cert. denied,-U.S.-, 101 S.Ct. 940, 67 L.Ed.2d 110 (1981) (ESAA II).
. Id. at 609-10.
. The district court considered the record in the related case of Caulfield v. Board of Educ., 486 F.Supp. 862 (E.D.N.Y. 1979), which was later affirmed, 632 F.2d 999 (2d Cir. 1980).
. 622 F.2d at 612.
. Note 1 supra.
. See notes 3 and 4 supra.
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_method
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
PLANT ECONOMY, INC., Appellant, v. MIRROR INSULATION COMPANY, Inc., Appellee.
No. 14101.
United States Court of Appeals Third Circuit.
Argued July 16, 1962.
Decided Sept. 26, 1962.
Philip G. Hilbert, New York City, for appellant.
Albert Sperry, Trenton, N. J., for ap-pellee.
Before BIGGS, Chief Judge, and HASTIE and GANEY, Circuit Judges.
BIGGS, Chief Judge.
The defendant, Mirror, has filed a motion to docket and dismiss an appeal by the plaintiff, Plant, from a final judgment in defendant’s favor. The motion alleges that the appeal was not taken within thirty days after the entry of the judgment as required by rule 73(a), Fed.R. Civ.Proc., 28 U.S.C., and that the order of the court below extending the period for taking the appeal was void and of no effect. Since the appeal has now been docketed , we consider only whether the appeal must be dismissed.
The judgment appealed from was entered on March 30, 1962, and, being final, was appealable. 28 U.S.C. § 1291. The notice of appeal was filed in the District Court on May 28, 1962. This was long after the expiration of the 30-day appeal period fixed by 28 U.S.C. § 2107 and Rule 73(a).
On May 8, 1962, however, Plant filed a motion, supported by affidavits, in the court below for an extension of the appeal period to May 29, 1962, on the ground that its failure to file a timely appeal was due to excusable neglect since it was not until May 3, 1962 that it learned of the entry of the judgment. On May 8, 1962, without prior notice to Mirror of the filing of the motion or of any hearing in respect to it, the extension was granted and an order was entered. It recited that Plant's motion had been made “for good cause and that plaintiff’s failure to [appeal] within the period originally prescribed was the result of excusable neglect”. A copy of the order was mailed to Mirror on the same day and was received by it in due course.
The order of May 8, 1962 was ineffective to extend the appeal period. An extension of time for the taking of an appeal, granted ex parte after the expiration of the original appeal period, is inconsistent with provisions of Rule 6(b) and Rule 6(d). Before the expiration of the original thirty-day period, the court could have extended the appeal period with or without motion or notice. But since no order extending the appeal period was made until after the thirty-day period had expired, the court was without authority to act ex parte. This was the conclusion reached in North Umberland Mining Co. v. Standard Acc. Ins. Co., 193 F.2d 951, 952 (9 Cir. 1952) based upon reasons which appear to us to be unassailable. Cf. Swindell-Dressler Corp. v. Dumbauld et al., 308 F.2d 267 (3 Cir. 1962). It follows that the appeal filed on May 29 was too late unless something done thereafter in the court below ■cured the infirmity.
On June 4 Mirror filed a motion in the court below to dismiss the appeal upon the ground that it had not been filed in time and that the ex parte order of May 8 was void and of no effect. This motion was heard, after notice to plaintiff, on June 25. During the argument the court acknowledged that it should have held a hearing before entering the order extending the period of appeal, but said that if its order was “void ab initio” as was held in North Umberland Mining Co. v. Standard Acc. Ins. Co., supra, then the filing of the notice of appeal was a nullity and was ineffective to divest the District Court of jurisdiction to proceed further in the case. Accordingly, the court stated that it would rectify any possible error in the granting of the ex parte extension order by proceeding to hear counsel for both parties argue whether plaintiff’s failure to take an appeal within the initial thirty-day appeal period was due to excusable neglect warranting an extension of the time to appeal. The court then found, as we have stated, that failure to appeal within the original thirty-day period was due to excusable neglect. It concluded the hearing by saying: “Gentlemen, submit an order that we deny defendant’s motion for attorneys’ fees, and that since defendant has shown excusable neglect, an appeal should be allowed in the Plant Economy decision.”
No written order allowing an appeal out of time was made by the court below. The court spoke no words of such a kind as would suggest an intention on its part that its opinion should serve as an order. Cf. United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 232-233, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). On the contrary the court by the very words quoted above made it plain that an order should be submitted by counsel. No order remained on the record but the void order of May 8, 1962, entered ex parte. But even if the court below had entered a written order on June 25, 1962 purporting to allow Plant to appeal out of time it would have been without the jurisdiction, the power, to have entered a valid order of extension. The time limits prescribed by Rule 73(a) are precise and definite. It authorizes a trial court to “extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed.” See note 2, supra. Final judgment was entered, as we have said on March 30, 1962. Eighty-seven days elapsed before the court below on June 25, 1962, indicated that it would extend Plant’s time for taking its appeal. The court was then without power to enter a valid order of extension. It follows that nothing which was done after the filing of the appeal on May 29 cured its then existing infirmity of untimeliness.
The views which we have expressed make it unnecessary for us to consider whether the failure of the Plant to take an appeal was due to excusable neglect based upon its failure to learn of the entry of the judgment appealed from.
We recognize that the Federal Rules of Civil Procedure must be construed liberally to bring about a just, speedy and inexpensive determination of every action. Any requirement of compliance with barren technical formalities is to be avoided. But it cannot be denied that certain formalities are indispensable if litigation is to be just, speedy and inexpensive. This fundamental and most important objective can be achieved only by adherence to rather than rejection of the rules. Healy v. Pennsylvania R. Co., supra, 181 F.2d at pp. 934, 937.
Since notice of appeal was not filed until after the expiration of thirty days from the entry of the judgment appealed from, and no effective action was taken in the court below to extend the appeal period, we do not possess the power to entertain the appeal. Consequently, it will be dismissed for lack of jurisdiction.
. The appeal was docketed on July 6, 1962, the same date on which the present motion was filed upon the payment of the required fee by Plant.
. Rule 73(a), Fed.R.Civ.Proc., 28 U.S.C., states in part:
“When an appeal is permitted by law from a district court to a court of appeals the time within which an appeal may be taken shall be 30 days from the entry of the judgment appealed from * * * except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment the district court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed. * * * ” 28 U.S.C. § 2107 is substantially similar.
. While the motion makes no mention of either 28 U.S.C. § 2107 or Rule 73(a), they were undoubtedly the basis of plaintiff’s action. See footnote 2, supra.
. The docket entry of May 8, 1962 reads:
“Order extending time to appeal to May 29, 1962, filed (Lane) Notice mailed.”
In the brief of Mirror it is stated at p.3:
“The first knowledge of the Court’s action in connection with such motion, which was received by appellee, was gained upon the receipt of the'order of the Court dated May 8, 1962 granting said motion.”
. Rule 6 (b) states:
“When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under rules 25, 50(b), 52(b), 59(b), (d) and (e), 60(b), and 73(a) and (g), except to the extent and under the conditions stated in them.”
Rule 6(d) states:
“A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than 5 days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59(c), opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time.”
. The District Court, at the hearing held on June 25, 1962, which is discussed later in the opinion, admitted the incorrectness of entering the extension order ex parte. Speaking of its action it said (Transcript p. 12): “I think I should have held a hearing.”
Speaking of the order the District Court stated: “[I]t is ab initio defective. I have already said that. I realize that.”
. It is a general rule, subject to some qualifications, that an appeal suspends the power of the court below to proceed further in the case. Hovey v. McDonald, 109 U.S. 150, 157, 3 S.Ct. 136, 27 L.Ed. 888 (1883). One exception, in both civil and criminal cases is that the jurisdiction of the lower court to proceed in a cause is not lost by the taking of an appeal from an order or judgment which is not appealable. Riddle v. Hudgins, 58 F. 490, 493 (Sth Cir.1893); Euziere v. U.S., 266 F.2d 88 (10th Cir.1959), reversed on other grounds 364 U.S. 282, 80 S.Ct. 1615, 4 L.Ed.2d 1720 (1960); Resnik v. La Paz Guest Ranch, 289 F.2d 814, 818 (9th Cir.1961); U. S. v. Orescent Amusement Co., 323 U.S. 173, 177-178, 65 S.Ct. 254, 89 L.Ed. 160 (1944). Cf. Healy v. Pennsylvania R. Co., 181 F.2d 934, 936-937 (3d Cir.1950), cert. den. 340 U.S. 935, 71 S.Ct. 490, 95 L.Ed. 674 (1951). An appeal from a non-appealable judgment or order is sometimes characterized as a “nullity”. U. S. v. Crescent Amusement Co., supra, 323 U.S. p. 177, 65 S.Ct. p. 256; Euziere v. U. S., supra, 266 F.2d p. 91.
Because of our views about the proceedings on June 25, later expressed in the text of the opinion, it is unnecessary to decide whether the filing of the abortive notice of appeal on May 29 deprived the trial court of jurisdiction to proceed further. Resnik v. La Paz Guest Ranch, supra, 289 F.2d p. 818, intimates that jurisdiction is lost only when the appeal is timely.
. This motion had also been heard on June 25, 1962 immediately prior to the motion of defendant to dismiss the appeal.
. As stated in the body of this opinion no written order was made by the court after its oral opinion was rendered. This would not necessarily have deprived its oral opinion from having the effect of an order provided the court clearly intended its opinion to be its final act in adjudicating or disposing of the matter before it. See United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 232-233, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). But the court’s request for the submission of an order allowing the appeal indicated that it did not intend that its opinion should have the status of an order.
In the federal courts an opinion is not a part of the record proper. A statement in an opinion of the conclusion reached by a court, even though couched in mandatory terms, should not serve as an order or judgment of the court. It is most desirable in order to avoid the confusion so apparent in the present record that a definitive order or judgment be made and entered in the court’s docket. In re D’Arcy, 142 F.2d 313, 315 (3 Cir. 1944). Since no order was made on the opinion, the court made no effective disposition of the matter before it. Healy v. Pennsylvania R. Co., 181 F.2d 934, 936 (3 Cir.1950), cert. den. 340 U.S. 935, 71 S.Ct. 490, 95 L.Ed. 674 (1951).
The entry which was made in the docket on June 25 does not affect our views. That entry reads: “6-25-62 Hearing on Motion to Dismiss Notice of Appeal * * * Ordered Motion denied”.
The making of a docket entry was an erroneous ministerial act of the clerk. United States v. Rayburn, 91 F.2d 162, 164 (8th Cir.1937). Since, in fact, no order had been made denying defendant’s motion, the docket entry possesses no legal effect.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
|
sc_certreason
|
L
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
STRYCKER’S BAY NEIGHBORHOOD COUNCIL, INC. v. KARLEN et al.
No. 79-168.
Decided January 7, 1980
Together with No. 79-181, City of New York v. Karlen et al.; and No. 79-184, Secretary of Homing and Urban Development v. Karlen et al., also on petitions for certiorari to the same court.
Per Curiam.
The protracted nature of this litigation is perhaps best illustrated by the identity of the original federal defendant, “George Romney, Secretary of the Department of Housing and Urban Development.” At the center of this dispute is the site of a proposed low-income housing project to be constructed on Manhattan’s Upper West Side. In 1962, the New York City Planning Commission (Commission), acting in conjunction with the United States Department of Housing and Urban Development (HUD), began formulating a plan for the renewal of 20 square blocks known as the “West Side Urban Renewal Area” (WSURA) through a joint effort on the part of private parties and various government agencies. As originally written, the plan called for a mix of 70% middle-income housing and 30% low-income housing and designated the site at issue here as the location of one of the middle-income projects. In 1969, after substantial progress toward completion of the plan, local agencies in New York determined that the number of low-income units proposed for WSURA would be insufficient to satisfy an increased need for such units. In response to this shortage the Commission amended the plan to designate the site as the future location of a high-rise building containing 160 units of low-income housing. HUD approved this amendment in December 1972.
Meanwhile, in October 1971, the Trinity Episcopal School Corp. (Trinity), which had participated in the plan by building a combination school and middle-income housing development at a nearby location, sued in the United States District Court for the Southern District of New York to enjoin the Commission and HUD from constructing low-income housing on the site. The present respondents, Roland N. Karlen, Alvin C. Hudgins, and the Committee of Neighbors To Insure a Normal Urban Environment (CONTINUE), intervened as plaintiffs, while petitioner Strycker’s Bay Neighborhood Council, Inc., intervened as a defendant.
The District Court entered judgment in favor of petitioners. See Trinity Episcopal School Corp. v. Romney, 387 F. Supp. 1044 (1974). It concluded, inter alia, that petitioners had not violated the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U. S. C. § 4321 et seq.
On respondents’ appeal, the Second Circuit affirmed all but the District Court’s treatment of the NEPA claim. See Trinity Episcopal School Corp. v. Romney, 523 F. 2d 88 (1975). While the Court of Appeals agreed with the District Court that HUD was not required to prepare a full-scale environmental impact statement under § 102 (2) (C) of NEPA, 42 U. S. C. § 4332 (2)(C), it held that HUD had not complied with § 102 (2) (E), which requires an agency to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” 42 U. S. C. §4332 (2)(E). See 523 F. 2d., at 92-95. According to the Court of Appeals, any consideration by HUD of alternatives to placing low-income housing on the site “was either highly limited or nonexistent.” Id., at 94. Citing the “background of urban environmental factors” behind HUD’s decision, the Court of Appeals remanded the case, requiring HUD to prepare a “statement of possible alternatives, the consequences thereof and the facts and reasons for and against. . . .” Ibid. The statement was not to reflect “HUD’s concept or the Housing Authority’s views as to how these agencies would choose to resolve the city’s low income group housing situation,” but rather was to explain “how within the framework of the Plan its objective of economic integration can best be achieved with a minimum of adverse environmental impact.” Ibid. The Court of Appeals believed that, given such an assessment of alternatives, “the agencies with the cooperation of the interested parties should be able to arrive at an equitable solution.” Id., at 95.
On remand, HUD prepared a lengthy report entitled Special Environmental Clearance (1977), After marshaling the data, the report asserted that, “while the choice of Site 30 for development as a 100 percent low-income project has raised valid questions about the potential social environmental impacts involved, the problems associated with the impact on social fabric and community structures are not considered so serious as to require that this component be rated as unacceptable.” Special Environmental Clearance Report 42. The last portion of the report incorporated a study wherein the Commission evaluated nine alternative locations for the project and found none of them acceptable. While HUD’s report conceded that this study may not have considered all possible alternatives, it credited the Commission’s conclusion that any relocation of the units would entail an unacceptable delay of two years or more. According to HUD, “[m]eas-ured against the environmental costs associated with the minimum two-year delay, the benefits seem insufficient to justify a mandated substitution of sites.” Id., at 54.
After soliciting the parties’ comments on HUD’s report, the District Court again entered judgment in favor of petitioners. See Trinity Episcopal School Corp. v. Harris, 445 P. Supp. 204 (1978). The court was “impressed with [HUD’s analysis] as being thorough and exhaustive,” id., at 209-210, and found that “HUD’s consideration of the alternatives was neither arbitrary nor capricious”; on the contrary, “[i]t was done in good faith and in full accordance with the law.” Id., at 220.
On appeal, the Second Circuit vacated and remanded again. Karlen v. Harris, 590 F. 2d 39 (1978). The appellate court focused upon that part of HUD’s report where the agency considered and rejected alternative sites, and in particular upon HUD’s reliance on the delay such a relocation would entail. The Court of Appeals purported to recognize that its role in reviewing HUD’s decision was defined by the Administrative Procedure Act (APA), 5 U. S. C. § 706 (2) (A), which provides that agency actions should be set aside if found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. . . .” Additionally, however, the Court of Appeals looked to “[t] he provisions of NEPA” for “the substantive standards necessary to review the merits of agency decisions. . . 590 F. 2d, at 43. The Court of Appeals conceded that HUD had “given ‘consideration’ to alternatives” to redesignating the site. Id., at 44. Nevertheless, the court believed that “ ‘consideration’ is not an end in itself.” Ibid. . Concentrating on HUD’s finding that development of an alternative location would entail an unacceptable delay, the appellate court held that such delay could not be “an overriding factor” in HUD’s decision to proceed with the development. Ibid. According to the court, when HUD considers such projects, “environmental factors, such as crowding low-income housing into a concentrated area, should be given determinative weight.” Ibid. The Court of Appeals therefore remanded the case to the District Court, instructing HUD to attack the shortage of low-income housing in a manner that would avoid the “concentration” of such housing on Site 30. Id., at 45.
In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U. S. 519, 558 (1978), we stated that NEPA, while establishing “significant substantive goals for the Nation,” imposes upon agencies duties that are “essentially procedural.” As we stressed in that case, NEPA was designed “to insure a fully informed and well-considered decision,” but not necessarily “a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decisionmaking unit of the agency.” Ibid. Vermont Yankee cuts sharply against the Court of Appeals’ conclusion that an agency, in selecting a course of action, must elevate environmental concerns over other appropriate considerations. On the contrary, once an agency has made a decision subject to NEPA’s procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot “ ‘interject itself within the area of discretion of the executive as to the choice of the action to be taken.' ” Kleppe v. Sierra Club, 427 U. S, 390, 410, n. 21 (1976). See also FPC v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326 (1976).
In the present litigation there is no doubt that HUD considered the environmental consequences of its decision to re-designate the proposed site for low-income housing. NEPA requires no more. The petitions for certiorari are granted, and the judgment of the Court of Appeals is therefore
Reversed.
At the time of the Court of Appeals’ decision, this section was numbered 102 (2) (D) and was codified at 42 U. S. C. § 4332 (2) (D) (1970 ed.). Congress redesignated it two weeks later. See Act of Aug. 9, 1975, Pub. L. 94-83, 89 Stat. 424.
If we could agree with the dissent that the Court of Appeals held that HUD had acted “arbitrarily” in redesignating the site for low-income housing, we might also agree that plenary review is warranted. But the District Court expressly concluded that HUD had not acted arbitrarily or capriciously and our reading of the opinion of the Court of Appeals satisfies us that it did not overturn that finding. Instead, the appellate court required HUD to elevate environmental concerns over other, admittedly legitimate, considerations. Neither NEPA nor the APA provides any support for such a reordering of priorities by a reviewing court.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_state
|
56
|
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".
SANTA FE DRILLING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 22923.
United States Court of Appeals Ninth Circuit.
Sept. 18, 1969.
James N. Adler (argued) & Roderick M. Hills, of Munger, Tolles, Hills & Rickershauser, Los Angeles, Cal., for petitioner.
Ronald Wm. Egnor (argued), Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Atty., Washington, D. C., for respondent.
Before CARTER and HUFSTEDLER, Circuit Judges, and BYRNE, District Judge.
Hon. William M. Byrne, Senior Judge, United States District Court for the Central District of California, sitting by designation.
HUFSTEDLER, Circuit Judge:
Santa Fe Drilling Co. (“Santa Fe”) petitions for a review of an order of the National Labor Relations Board (“the Board”), and the Board applies for an enforcement of the same order.
The order affirmed the decision of a Trial Examiner holding that Santa Fe had engaged in the following unfair labor practices during a union representation election held on an off-shore drilling platform near Kenai, Alaska: (1) coersive statements and threats to employees in violation of section 8(a) (1) of the National Labor Relations Act (“the Act”), and (2) discriminatory discharges of employees in violation of section 8(a) (3) of the Act. Santa Fe was ordered to cease and desist from coercing employees and from making discriminatory discharges. The Board further ordered Santa Fe to offer immediate and full reinstatement to five discharged employees and to make them whole for loss of pay.
Santa Fe contends that its agents did not coerce or threaten employees, that the discharges were for good cause and were not discriminatory, and that, in any case, reinstatement of three particular employees should not have been ordered. The Board contends that substantial evidence on the record as a whole supports the Board’s findings that Santa Fe had coerced and discriminatorily discharged employees and that the remedies imposed were within the Board’s discretion. We review the Board’s findings seriatim.
The oil drilling platform in question is owned by the Shell Oil Company. Sante Fe performs the drilling operations on the platform under a labor contract with Shell. The platform began operation in March of 1965. Drilling operations are conducted on a 24-hour basis by three 7-man drilling crews, each working a 12-hour shift, 10 days on and 5 days off. Each crew is under the immediate supervision of a driller. The crews are supervised by foremen or pushers, two employed by Santa Fe, two by Shell. During the period herein in question, the pushers for Santa Fe were Vernon Blair and Coleman “Prim” Roady. Vernon “Bud” Furry of Shell was in charge of the overall operation of the platform.
On January 25, 1966, the Alaska Petroleum Crafts Council (“APCC”) petitioned the Board for a representation election. The International Union of Petroleum Workers, AFL-CIO (“IUPW”), intervened. By consent of all the parties, an election was scheduled for February 20, 1966. The tally of ballots from the election showed 15 for IUPW, 2 for APCC, 14 for neither, and 5 were challenged.
1. Section 8(a) (1) Violations
The Trial Examiner found that certain statements made before and after the representation election by Santa Fe’s supervisors Blair and White violated section 8(a) (1) of the Act by restraining and coercing employees in the exercise of rights guaranteed by section 7.
a. Interrogation of Gordon
The first violation, as found by the Trial Examiner, occurred in January 1966, when Blair called employee Gordon aside to talk about “this union deal.” Blair had information that Gordon had been involved in strike violence occurring with another Alaskan drilling contractor. Blair questioned Gordon about this though he assured Gordon that he “didn’t mind people that were in union activities, just as long as they did their work well.” Gordon disclaimed interest in union activities. Blair mentioned existing company benefits and urged Gordon to vote in the election. The Trial Examiner found that this conduct was unlawful interrogation and violated section 8(a) (1).
The interrogation of employees concerning their union activities is not unlawful per se. Interrogation becomes unlawful under the Act only when it is expressly or implicitly threatening or coercive. A number of factors must be considered in determining whether such interrogation is coercive. (See N. L. R. B. v. Hotel Conquistador, Inc. (9th Cir. 1968) 398 F.2d 430, 434; N. L. R. B. v. Milco, Inc. (2d Cir. 1968) 388 F.2d 133; N. L. R. B. v. Consolidated Rendering Co. (2d Cir. 1967) 386 F.2d 699.) The Trial Examiner concluded that “Blair’s statements to Gordon and his none too subtle interrogation were reasonably calculated by Blair and interpreted by Gordon as an attempt to ascertain the latter’s union sentiments and to instill in him apprehension of the consequences of any renewed union activity.” This conclusion is supported by substantial evidence in the record considered as a whole and suffices to indicate a violation of section 8(a) (1) by Santa Fe.
b. Threats to Carter, Sherwood, and Gardner
The next violations found by the Trial Examiner consisted of threats by Blair that certain existing benefits would be withdrawn if the employees chose a union. Carter, Sherwood, and Gardner testified at the hearing that Blair expressly threatened that benefits would be withdrawn if the employees chose to unionize. Blair denied such threats, and a number of employees— including three who were found to have been discriminatorily discharged — acknowledged that no explicit threats were made by Blair. The Trial Examiner did not expressly resolve this conflict, but he found that whether or not explicit threats were -made, Blair's repeated enumerations of existing benefits in head-to-head confrontations with employees constituted implicit threats of reprisal, because Blair thereby reasonably conveyed the impression that benefits might be withdrawn and employees compelled to work harder if they voted for a union.
Threats by an employer to withdraw existing benefits if employees unionize are not speech which is protected by section 8(c) of the Act. (N. L. R. B. v. TRW-Semiconductors, Inc. (9th Cir. 1967) 385 F.2d 753.) Such threats violate section 8(a) (1) of the Act. (N. L. R. B. v. Luisi Truck Lines (9th Cir. 1967) 384 F.2d 842, 845.) Whether language has a threatening or coercive effect upon employees depends upon the totality of the circumstances in which it is used. (N. L. R. B. v. Sinclair Co. (1st Cir. 1968) 397 F.2d 157, aff’d sub nom. N. L. R. B. v. Gissel Packing Co. (1969) 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547.) The Trial Examiner’s finding, affirmed by the Board, that Blair’s enumerations of benefits were implied threats of reprisal under the circumstances is supported by ample evidence. The Trial Examiner and the Board correctly concluded that the resolution of the conflict over the existence of express threats was legally irrelevant to the issue whether section 8(a) (1) had been violated.
c. Threats to Gardner, Barefield, Carter, and Bloodsworth
The next violations of section 8 (a) (1) found by the Trial Examiner occurred immediately after the election. Blair told employees Gardner and Bare-field that he was not going to let the men run him off by dragging their feet and jeopardizing his record. According to Gardner and Barefield, Blair also stated that 17 men had voted for the union, and “I am going to run every one of you off- — and you two [Gardner and Barefield] are going to be first.” Carter and Bloodsworth testified to similar statements by Blair. Blair denied making these statements threatening discharges. But the Trial Examiner considered all the circumstances and credited Gardner’s version and discredited Blair’s version of Blair’s remarks after the election. Threats of the kind attributed to Blair violated the Act. Santa Fe admits that the Trial Examiner’s assessment of credibility cannot be overturned unless the finding contains clear error. (N. L. R. B. v. Luisi Truck Lines, supra.) We do not perceive any error.
The Trial Examiner and the Board also found a violation of section 8(a) (1) by driller Troy White. Employee Bloodsworth testified that White told the men that since they voted for the union, there would be no more coffee breaks, movies would be curtailed, and visits to the lavatory would be restricted. White denied making these statements, except for the statement about lavatory restrictions. The Trial Examiner did not believe White.
We conclude that substantial evidence on the record as a whole supports the Board’s finding that Santa Fe, through its agents White and Blair, violated section 8(a) (1) by threatening to withdraw benefits should the employees choose a union and threatening to discharge employees who voted for the union.
2. Section 8(a) (3) Violations
The representation election was held on the platform on February 20, 1966. On February 22, employee Lloyd W. Collins was discharged; on February 24, employee Arthur W. Gordon was discharged; on March 20, 1966, employee Sidney R. Sherwood was “bumped” by a- man with seniority and was not offered the opportunity to “bump” a man with a lower position and less seniority; on May 7, 1966, employee David L. Gardner was discharged; and on June 9, 1966, employee Ernest N. Barefield was discharged. The Board adopted the Trial Examiner’s finding that all these discharges were discriminatory and in violation of section 8(a) (3) of the Act. Santa Fe contends that all the discharges were for good cause and were not motivated by an antiunion animus. The Trial Examiner found that the good causes offered for the discharges were mere pretexts for the antiunion motive.
The general principles governing our review of Board findings of discriminatory discharges have been adequately summarized elsewhere. (N. L. R. B. v. Miller Redwood Co. (9th Cir. 1969) 407 F.2d 1366; N. L. R. B. v. Hotel Conquistador, Inc., supra, 398 F.2d at 435; Aeronca Mfg. Co. v. N. L. R. B. (9th Cir. 1967) 385 F.2d 724; N. L. R. B. v. Security Plating Co. (9th Cir. 1966) 356 F.2d 725, 728.) Under section 8(a) (3), an employer is prohibited from discharging an employee because of the employee’s union activities or sympathies. The determination which the Board must make is one of fact — • what was the actual motive of the discharge? A tendered cause for the discharge will be rejected if it is found to be a mere pretext for the actual anti-union motive. The determination of actual motive is, of course, a difficult task; it depends principally upon inferences drawn from the entire web of circumstances presented by the evidence. Our review of the Board’s finding of the fact of motivation is limited to determining whether the evidence relied upon is credible and the inferences drawn are reasonable. (R. J. Lison Co. v. N. L. R. B. (9th Cir. 1967) 379 F.2d 814.)
With these principles in mind, we review seriatim the findings as to each discharged employee.
a. Lloyd Collins
Collins was originally hired as a floor hand and was promoted to derrickman within a month. Blair and Olds, Collins’ pusher, admitted that Collins was an “excellent worker” and that he had been recommended for a promotion to driller. Blair discharged Collins two days after the election. Blair gave two reasons for the discharge: (1) Collins’ poor attitude, and (2) his negligence in allowing $1000 worth of drilling mud to spill. The Trial Examiner rejected the reasons as pretexts and found that, in violation of section 8(a) (3), Collins had been discharged for his union activities.
Santa Fe contends that this finding is not supported by substantial evidence because there is no credible evidence in the record to establish that Blair knew about Collins’ union activities, and the evidence indicates that the motive for discharging Collins was not his union activities.
There was evidence that Collins had expressed his dissatisfaction with wage conditions and his prounion sentiments to some of his fellow employees before the election, but there was no direct evidence that Collins or anyone else told Blair what Collins had said. But Blair’s knowledge of Collins’ union sympathies could have been and was inferred from Carter’s testimony that Blair told him shortly after the election that Collins was trying “to [get] him” and that Collins had voted for the union.
Santa Fe cites a number of Collins’ derelictions to support its claim that Collins was fired for good cause and not for his union activities. The citations read in a vacuum support Santa Fe. But the incidents have to be placed in the total setting in which they occurred to ascertain motivation. Collins did make abusive and obscene remarks to his superiors, yet there is no suggestion that Collins’ colorful and contumacious form of expression first manifested itself around election time. Collins did cause a serious mud spillage, but there was evidence that mud spillages were not rare and no one, except Collins, who had caused one had ever been fired for it. Blair’s pique about union activity, likewise expressed in earthy terms, was well established. From the totality of the evidence we cannot say that the Trial Examiner’s finding that the real motive for discharging Collins was antiunion animus is not adequately supported by the record.
b. Arthur Gordon
Gordon was employed as a floor hand until Blair fired him on February 24, 1966. The announced reason for the discharge was Blair’s finding Gordon sleeping instead of performing his assigned task of pit watching. The Trial Examiner found that Gordon’s dereliction was Blair’s excuse for the discharge and that Blair’s real motivation was anti-union animus.
The record shows that Blair knew about Gordon’s union activity and that Blair did not like it, and that Blair personally disliked Gordon. Aside from the dozing incident, Gordon’s work was satisfactory. The record also shows that pit watching was an assignment requiring alertness and that neglect of the assignment could endanger safety of the platform. The record would have supported a finding, had one been made, that Gordon was fired for good cause and not for his union activity. But it does not follow that the Trial Examiner’s finding to the contrary is unsupported. Blair’s action in the light of his expressed hostility to Gordon and to Gordon’s union activity supports the Trial Examiner’s conclusion that the dozing incident was pretextual.
c. Sidney Sherwood
Sherwood was hired as a roustabout on December 7, 1965, and was promoted to derrickman on January 21, 1966. On March 20, 1966. Sherwood was “bumped” by a senior employee from another drilling rig. Blair refused to allow Sherwood, in turn, to bump roustabouts with less seniority because he said that Sherwood’s performance as roustabout had been poor.
Blair admitted that he knew that Sherwood was a union supporter. The Trial Examiner considered the cause given for the refusal to allow Sherwood to bump a junior employee to be pretextual. He found that Blair’s charge of poor performance was belied by Sherwood’s prompt promotion from roustabout to a higher rated, better paying, and more desirable job. Santa Fe contends that the promotion was engineered without Blair’s knowledge and in his absence. The Trial Examiner’s inference of anti-union animus was a reasonable one. Blair had threatened to run off every crewman who voted for the unions. His refusal to allow Sherwood to bump a junior employee can be considered a threat made good, considering the flimsy substantiation for the poor performance charge.
d. David Gardner
Gardner was hired on March 25, 1965, and served in a number of positions until his discharge in May 1966. He was an active union supporter and served as an observer for the IUPW in the election. He had a quarrel with supervisor Roady concerning the docking of his wages on election day. Gardner was also one of two employees whom Blair specifically threatened to discharge four days after the election.
During the first week in May, Shell’s pusher, Furry, decided to work a crane crew at night. Blair decided to use crane operator Carter and his two roustabouts, Gardner and Honeysett, although that crew was ashore on their five days off. Blair notified Carter that his crew was to report 12 hours early at 6 p. m. on May 7 instead of 6 a. m. on May 8. Carter told Gardner of the change. Thereafter Carter notified the platform that he was too ill to report on the 7th. Gardner went to the platform on the afternoon of the 7th, but found neither Carter nor Honeysett. The helicopter pilot told him that Carter’s crew was not going to the platform until the next day. Gardner concluded that there was no need for him to report since his crew was not going out. The following afternoon, Gardner was flown to the platform and promptly discharged.
The Trial Examiner found that the discharge was discriminatory, relying upon the fact that Blair had specifically threatened to run Gardner off for his prounion sympathies. Santa Fe contends that the decision to discharge Gardner was made by Shell’s supervisor Furry and not by Blair. That being so, Santa Fe contends that Furry must be shown to have known of Gardner’s union activities and to have ordered the discharge on that account. Santa Fe contends that no such showing was ever made.
We disagree. There is some indication that the Trial Examiner did not consider it necessary to find that Furry entertained an antiunion animus when he ordered Gardner’s discharge. Assuming that Furry was entirely responsible for the decision, this legal position is erroneous. (See Salinas Valley Broadcasting Corp. v. N. L. R. B. (9th Cir. 1964) 334 F.2d 604, 613; N. L. R. B. v. Whitfield Pickle Co. (5th Cir. 1967) 374 F.2d 576, 581.) The Trial Examiner also found that Blair, who admittedly knew of Gardner’s union activities and who was found to have threatened to discharge Gardner because of such activities, contributed to the accomplishment of the discharge. Such a connection is sufficient to support the Trial Examiner’s inference that Gardner was discharged because of his union activities. (N. L. R. B. v. Neuhoff Bros. Packers, Inc. (5th Cir. 1967) 375 F.2d 372, 374.)
Alternatively, Santa Fe contends that Gardner was fired for good cause — because he violated a company rule that requires an employee to notify the platform in advance if he cannot report for his tour or have good cause for failing to do so. The evidence as to how strictly this rule was enforced against first offenders was conflicting. The Trial Examiner found that, under the circumstances, Gardner had been accorded disparate treatment. That finding and the ultimate finding that Gardner had been discriminatorily discharged are supported by substantial evidence on the record as a whole.
e. Ernest Barefield
Barefield was employed as a pit watcher in December 1965. The essential facts concerning the discharge are not in dispute. On June 9, 1966, the power was shut down on the platform. Driller Olds told his crew to do as much painting and scraping as possible. Supervisors Roady and Olds found Barefield in the mud loggers shack reading a magazine. Roady fired Barefield on the spot.
The Trial Examiner found that B are-field’s conduct could have furnished ample cause for discharge, but he found the discharge was discriminatory because Santa Fe’s supervisors seized the earliest opportunity to rid the company of a known union adherent. Barefield had told Blair that he was a union member, and Blair had specifically singled out Barefield as one of the employees he was going to run off.
Santa Fe contends that there is no evidence in the record indicating that Roady knew or suspected Barefield of union activity and that the Trial Examiner made no finding that Roady did so know or suspect. We agree that no finding of knowledge on the part of Roady was made. As we noted above, unless it is found that some person who participated in or contributed to the discharge knew or suspected that the employee had engaged in protected union activity, an ultimate finding of discriminatory discharge cannot be upheld. (N.L.R.B. v. Neuhoff Bros. Packers, Inc., supra; Salinas Valley Broadcasting Corp. v. N.L.R.B., supra, 334 F.2d at 613; Federation of Union Representatives v. N.L.R.B. (2d Cir. 1964) 339 F.2d 126.)
Counsel for the Board contends that the record provides ample evidence from which an inference of knowledge on the part of Roady could be drawn. We do not pass on the question as to whether or not in a situation where neither the Examiner nor the Board drew the inference, this court may draw the inference of knowledge on the part of Roady of the union activities of Barefield. (See N.L.R.B. v. Ambox, Inc. (5th Cir. 1966) 357 F.2d 138, 142; N.L.R.B. v. Transport Clearings, Inc. (5th Cir. 1962) 311 F.2d 519; N.L.R.B. v. Roberto Alvaro Mfg., Inc. (1st Cir. 1964) 327 F.2d 998.) We think under the facts of this case that whether the inference should be drawn or not is a matter for the Board. (Cf. N.L.R.B. v. Metropolitan Life Ins. Co. (1965) 380 U.S. 438, 444, 85 S.Ct. 1061, 13 L.Ed.2d 951.)
3. Reinstatement Orders
We have held that substantial evidence supports the Board’s findings that employees Collins, Gordon, Sherwood, and Gardner were discharged because of their union sympathies. Santa Fe contends that the remedy of reinstatement with back pay ought not to have been ordered as to each employee.
The Trial Examiner found that Sherwood used threatening, abusive, and obscene language toward Blair, when Blair told him that he had been laid off. The Trial Examiner concluded for this reason that Sherwood had forfeited his right to reinstatement and back pay and recommended that neither remedy be ordered with respect to Sherwood. The Board declined to follow the recommendation. The Board held that Sherwood’s sense of indignation at being laid off had considerable justification. It noted that no actual threats of physical harm or bodily violence were made and that the obscenity used was not a serious breach of decorum on an off-shore drilling platform. In conclusion, the Board found that Sherwood’s remarks were not such aggravated and gross misconduct as to render Sherwood unfit for further employment.
We have recently had occasion to note that postdischarge misconduct which will justify a court in refusing to enforce a Board order to rehire depends upon the degree and kind of misconduct. (N.L.R.B. v. Miller Redwood Co., supra, 407 F.2d at 1370 n. 2).) Each case must be decided on its own facts. We agree with the Board that the remarks by Sherwood were not so flagrant as to justify the withholding of the normal remedy of reinstatement. (Compare N.L.R.B. v. M & B Headwear Co. (4th Cir. 1965) 349 F.2d 170; N.L.R.B. v. Morrison Cafeteria Co. (8th Cir. 1963) 311 F.2d 534, 538, with N.L.R.B. v. R. C. Can Co. (5th Cir. 1965) 340 F.2d 433.)
Gardner testified that he had intended to quit his job the morning after he was discharged without regard to the discrimination against him and that he had obtained, or was about to obtain, another job at which, in fact, he was still working at the time of the hearing. On the basis of this testimony, the Trial Examiner recommended that Santa Fe be ordered to make Gardner whole for any loss of earnings caused by Santa Fe’s discrimination, but recommended that no offer of reinstatement be made. The Board disagreed with the Trial Examiner. The Board reasoned that the numerous instances of interference, restraint, and coercion committed by Santa Fe in violation of section 8(a) (1) of the Act would reasonably cause an employee to be insecure and to think in terms of other employment. The Board therefore found that Gardner’s decision to terminate his employment voluntarily was not a rational, uncoerced decision which can be construed as a waiver of his right of reinstatement.
Santa Fe contends that the Board erred in failing to follow its own decision in Tomahawk Boat Mfg. Corp. (1963) 144 N.L.R.B. 1344, 1345 n.2. Santa Fe reads Tomahawk Boat for the broad proposition that an employee is not entitled to back pay beyond the date he would have been working for the company if he had not been discriminatorily discharged. We do not read it so broadly. In Tomahawk Boat, the employer decided for lawful reasons to replace an employee as soon as a suitable replacement could be found. The employee was discriminatorily discharged a month later. The Board denied reinstatement. In the present case, it was the employee who sought other employment after his employer had engaged in unfair labor practices and threatened to discharge employees.
Under the circumstances of this case, we think the Board acted within its discretion in devising an appropriate remedy for unfair labor practices. There is substantial evidence to support its conclusion that Gardner’s decision to seek other work was caused by Santa Fe’s supervisors’ threats to “run off” union adherents. Gardner was one of the two employees mentioned specifically by Blair in his postelection tirade. The situation is thus analogous to a constructive discharge. (See N.L.R.B. v. Tennessee Packers, Inc. (6th Cir. 1964) 339 F.2d 203.) The Board’s order is well within its broad powers to order reinstatement in order to effectuate the policies of the Act. (Phelps-Dodge Corp. v. N.L.R.B. (1941) 313 U.S. 177, 189-197, 61 S.Ct. 845, 85 L.Ed. 1271.)
Santa Fe argues that Collins should not be reinstated because he had been guilty of misconduct for which he would have been summarily discharged had his employer known about it before he was diseriminatorily discharged. (Uniform Rental Service, Inc. (1966) 161 N.L.R.B. 187, 190; Fort Smith Broadcasting Co. (1964) 146 N.L.R.B. 759, 766-67, enforcement denied on other grounds (8th Cir. 1965) 341 F.2d 874.) Failure to apply this principle affecting reinstatement does not warrant refusal to enforce the Board’s order unless that failure constituted an abuse of the Board’s discretion. (N.L.R.B. v. Terry Coach Industries, Inc. (9th Cir. 1969) 411 F.2d 612.) Collins admitted that he brought liquor aboard the platform. He explained that he was unaware of the company rule against it. There is no evidence that Collins drank any of the liquor or gave anyone else liquor. Judging the credibility of Collins’ testimony is without our purview. We cannot say that the Board under the aggravated circumstances of this case abused its discretion in ordering Collins’ reinstatement.
The Board’s order for the reinstatement of employees Collins, Gordon, Sherwood and Gardner is ordered enforced. The Board’s order for the reinstatement of Barefield is denied and the case remanded to the Board for its determination as to whether or not it sees fit to draw the inference from the record that Roady knew of Barefield’s union activities and his discharge was based upon such union activities. The Board is directed to prepare an order in conformity with the views herein expressed.
. Section 8(a) (1) : “[It shall be an unfair labor practice for an employer] * * * to interfere with, restrain, or eo-' erce employees in the exercise of the rights guaranteed in section 157 * * *."
Section 7: “Employees shall have the right to * * * join labor organizations, [and] to bargain collectively * * *."
. Section 8(a) (3): “[It shall he an unfair labor practice for an employer] * * * by discrimination in regard to hire or tenure of' employment * * * to encourage or discourage membership in any labor organization.”
. A third reason for Collins’ discharge was brought out at the hearing before the Trial Examiner, but Santa Fe has not relied upon it in seeking review in this court.
. Santa Fe attempts to discount Carter’s testimony, because Carter’s memory had to be refreshed by his pretrial statement to the Board. However, the use of a writing to refresh a witness’ recollection is a practice well recognized in the law of evidence. See, e. g., California Evidence Code § 771(a).
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:
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songer_state
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39
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
UNITED STATES of America, Appellant, v. STARUSKO, John.
No. 83-5479.
United States Court of Appeals, Third Circuit.
Argued Jan. 10, 1984.
Decided March 5, 1984.
Paul J. Brysh (argued), Asst. U.S. Atty., Pittsburgh, Pa., for appellant.
Russell J. Ober, Jr. (argued), Rose, Schmidt, Dixon & Hasley, Pittsburgh, Pa., for appellee.
Before ALDISERT, HIGGINBOTHAM, and SLOVITER, Circuit Judges.
OPINION OF THE COURT
ALDISERT, Circuit Judge.
In this appeal by the government, brought pursuant to 18 U.S.C. § 3731, we are asked to decide whether the district court abused its discretion in precluding a key government witness from testifying at trial in a criminal case as a sanction for the government’s failure to turn over to the defendant certain exculpatory evidence pri- or to trial. We hold that although the government withheld materially exculpatory evidence, in direct violation of a valid district court order, it was an abuse of discretion for the district court to issue a preclusion order based on a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because the defendant was not prejudiced by the government’s nondisclosure.
I.
This controversy arises out of certain pretrial proceedings in the federal prosecution of John Starusko, a real estate tax assessor of Allegheny County, Pennsylvania, charged by the government with participation in a scheme to extort money in exchange for the lowering of county tax assessments. At a pretrial hearing held on June 3, 1983, the district court, at defendant’s request, issued a disclosure order pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), directing the government to turn over to the defense all exculpatory material in its possession, including evidence that “could be used by the defendant to impeach the government’s witnesses.” App. at 23A-24A. It then warned the government that if such material were not disclosed by June 6, 1983 — a date two weeks in advance of the scheduled date of trial — it would preclude those witnesses from testifying at trial. The government never objected to this order.
When the district court issued the disclosure order, the prosecutor had in his possession three F.B.I. reports that were based on interviews with Patrick Logan, another property assessor and the alleged mastermind of the tax assessment scheme, who was slated to be the government’s key witness at trial. The reports, the relevant portions of which appear in the margin, contain inconsistent summaries of statements by Logan as to defendant’s knowledge of Logan’s involvement in the tax assessment scheme. None of the reports were turned over to defendant by the June 6, 1983 disclosure order deadline. The government made the first and third reports available sometime within the week before trial. The second report, which indicates that defendant had no knowledge of Logan’s involvement in the scheme, was never turned over to defendant, but came into defense counsel’s possession through a third party a few days prior to trial.
Believing that the second report was exculpatory material that should have been turned over to him pursuant to the district court’s disclosure order, defendant filed a motion in limine asking that the government be prohibited from offering Logan’s testimony at trial as a sanction for its noncompliance. Notwithstanding the district court's ruling at the time it issued its order that impeachment evidence is Brady material that must be disclosed, the government responded to the motion in limine as follows:
Defendant was not entitled to this information before trial because it is not exculpatory but could be used only to impeach the witness’ testimony and thus is subject to disclosure under the Jencks Act, Title 18, United States Code, Section 3500, not Brady.
App. at 46A. From his response, it appears that the prosecutor understood both the spirit and the letter of the court's pretrial order, but believing that the F.B.I. report in his possession was not Brady material, he deliberately refused to turn that report over to defendant. After considering both the motion and the response, the court entered an order in which it “exercise[d] its discretion to sanction for failing to comply with the Brady case by precluding the testimony of Patrick Logan at the trial of this case.” App. at 51A. The preclusion order prompted the government’s appeal.
Before us, the government contends that the district court abused its discretion in precluding Logan from testifying at trial. It argues that the court was wrong to base this sanction on the government’s failure to turn over Brady material to the defendant prior to trial because: (1) the second F.B.I. report is not Brady material; (2) even if it were, the court had no authority to require its disclosure prior to trial; and (3) that failure did not prejudice the defendant so as to violate Brady.
II.
In Brady v. Maryland, the Supreme Court held that due process forbids a prosecutor from suppressing “evidence favorable to an accused upon request ... where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. at 1196. Brady thus requires disclosure by the government of evidence that is both exculpatory and material. United States v. Higgs, 713 F.2d 39, 42 (3d Cir.1983); United States ex rel. Marzeno v. Gengler, 574 F.2d 730, 735 (3d Cir.1978). Exculpatory evidence includes material that goes to the heart of the defendant’s guilt or innocence as well as that which might well alter the jury’s judgment of the credibility of a crucial prosecution witness. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); Higgs, 713 F.2d at 42. Evidence impeaching the testimony of a government witness is exculpatory when the credibility of the witness may be determinative of a criminal defendant’s guilt or innocence. Giglio, 405 U.S. at 154, 92 S.Ct. at 766; United States v. Gengler, 574 F.2d 730, 735 (3d Cir.1978). If the exculpatory evidence “creates a reasonable doubt” as to the defendant’s culpability, it will be held to be material. United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976).
We have no doubt that the second F.B.I. report qualifies as Brady material. Patrick Logan, the alleged source of the statements contained in the report, is critical to the government’s case. As a key prosecution witness, his credibility may well be determinative of guilt or innocence. Giglio, 405 U.S. at 154, 92 S.Ct. at 766; Gengler, 574 F.2d at 735. Thus, evidence that could be used to impeach Logan’s credibility, would clearly be exculpatory. A close examination of the second F.B.I. report, juxtaposed with the first and third F.B.I. reports, illustrates its value as impeachment evidence.
In the first F.B.I. report, Logan allegedly stated that “Starusko knew the complete details concerning the fact that Logan was going to receive money for the fixing of an assessment.” App. at 53A. A day later, in the second F.B.I. report, Logan “basically changed the statements” he had made the previous day. App. at 55A. He reportedly asserted that Starusko had “[no knowledge] about the fact that [Logan] was going to receive money for adjusting assessments on business properties.” App. at 55A-56A. Finally, in the third F.B.I. report, Logan apparently returned to his original belief that Starusko did have knowledge of Logan’s involvement in the extortion scheme. According to the report, “Logan told Starusko that if the assessment was lowered on the property, Logan could get something out of it. In response ..., Starusko replied, “I don’t want to know nothing.” App. at 57A. Because the second F.B.I. report contains an alleged statement as to the defendant’s knowledge that is inconsistent with other statements Logan purportedly made to the F.B.I., it can be used to impeach Logan’s credibility. It is particularly solid impeachment evidence because it goes against the thrust of the prosecution’s ease. We conclude, therefore, that the report is exculpatory, not only because it might well alter the jury’s judgment of Logan, but also because its content goes to the heart of the defendant’s guilt or innocence.
Moreover, we find the report to be material. We recognize that, generally, it is difficult to analyze, prior to trial, whether potential impeachment evidence falls within Brady without knowing what role a certain witness will play in the government’s case. Agurs, 427 U.S. at 108, 96 S.Ct. at 2399; Higgs, 713 F.2d at 43. But here, Logan’s role is clear. He is the linchpin of the prosecution’s case. It logically follows, therefore, that the second F.B.I. report, which affects his credibility and sheds light on the underlying question of substantive guilt, is material for impeachment purposes. It is “obviously of such substantial value to the defense that elementary fairness requires it to be disclosed.” Agurs, 427 U.S. at 110, 96 S.Ct. at 2401.
Accordingly, we cannot say that the district court erred in characterizing the F.B.I. report as impeachment material qualifying under the Brady rule. But this still does not end our inquiry. We now must determine whether the district court had authority to require disclosure of the report prior to trial.
III.
In Higgs, this court announced that the district court has general discretionary authority to order the pretrial disclosure of Brady material “to ensure the effective administration of the criminal justice system.” 713 F.2d at 44 n. 6. In so doing, the court perpetuated our longstanding policy of encouraging early production. See, e.g., Gengler, 574 F.2d at 739 (Seitz, C.J., concurring) (“a prosecutor’s timely disclosure obligation with respect to [Brady ] material cannot be overemphasized”); United States v. Kaplan, 554 F.2d 577, 578 (3d Cir.1977) (“we disapprove and discourage a practice of delayed production”); Government of the Virgin Islands v. Ruiz, 495 F.2d 1175, 1179 (3d Cir.1974) (encouraging “an affirmative policy of prompt compliance”).
Today, we affirm this court’s longstanding policy and applaud the district court’s effort to ensure prompt compliance with Brady. We flatly reject the notion, espoused by the prosecution, that “it is the government, not the district court, that in the first instance is to decide when to turn over Brady material.” Brief for Appellant at 28. The district court may dictate by court order when Brady material must be disclosed, and absent an abuse of discretion, the government must abide by that order. Moreover, we expressly disapprove of the government’s belated attempt to question the district court’s authority. When it first received the court’s disclosure order, the government never quarreled with its mandate that all exculpatory material be turned over prior to trial. It never produced evidence or argument to the court to demonstrate how its prosecution would be impaired by having to disclose, prior to trial, all exculpatory evidence in its possession. Instead, the prosecutor waited to complain until after the preclusion order had been imposed. In light of these circumstances, we reject completely the government’s attempt on appeal to have us excuse its noncompliance with an order of the district court on the grounds that the court had no authority to issue the order.
IV.
Having found that the report withheld by the government was in fact Brady material and that the district court had authority to order its disclosure prior to trial, we now must determine whether the government’s failure to turn over that report to the defendant constituted a violation of Brady on which the court could bottom its preclusion order.
When a defendant discovers after trial that the prosecutor has withheld Brady material, the court ordinarily grants him a new trial, predicated on the precept that “[w]e are dealing with the defendant’s right to a fair trial mandated by the Due Process Clause of the Fifth Amendment to the Constitution.” Agurs, 427 U.S. at 107, 96 S.Ct. at 2399. If this matter had proceeded to trial and defendant not been apprised of the second F.B.I. report until after trial, and if Patrick Logan had testified at trial as to a fact bearing materially on Starusko’s guilt or innocence, we would have no hesitation in concluding that a due process violation had been made out. But such is not the case here because the government’s failure to disclose was exposed prior to trial. Moreover, by reason of the government’s appeal, the trial has yet to be had.
When the district court learned that the prosecutor had knowingly refused to obey its disclosure order, it sanctioned the government for “failing to comply with the Brady case.” App. at 51A. In imposing its sanction, the court apparently drew an analogy to the remedy available to it under Rule 16(d)(2), F.R.Crim.P., which provides that where there is a violation of a discovery rule, the court may issue an order “prohibit[ing] the party from introducing evidence not disclosed.” Perhaps, too, it analogized to the Jencks Act, which states: “[i]f the United States elects not to comply with an order of the court ... the court shall strike from the record the testimony of the witness.” 18 U.S.C. § 3500(d).
Unlike Rule 16 and the Jencks Act, however, Brady “is not a discovery rule, but a rule of fairness and minimum prosecutorial obligation.” United States v. Beasley, 576 F.2d 626, 630 (5th Cir.1978), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979). There can be no violation of Brady unless the government’s nondisclosure infringes the defendant’s fair trial right. Higgs, 713 F.2d at 42, 43. To constitute a Brady violation, the nondisclosure must do more than impede the defendant’s ability to prepare for trial; it must adversely affect the court’s ability to reach a just conclusion, to the prejudice of the defendant. United States v. Campagnuolo, 592 F.2d 852, 861-62 (5th Cir.1979). “No denial of due process occurs if Brady material is disclosed in time for its effective use at trial.” Higgs, 713 F.2d at 44; see also Kaplan, 554 F.2d at 580. Moreover, “the government is not obliged under Brady to furnish a defendant with information which he already has or, with any reasonable diligence, he can obtain himself.” Campagnuolo, 592 F.2d at 861.
Here, because the defendant suffered no prejudice from the government’s failure to disclose the report, there was no Brady violation. Defense counsel’s independent discovery of the statement — fortuitous though it was — negates any argument that the defendant was deprived of rights assured by the Constitution. Absent a showing of prejudice, we conclude that the district court abused its discretion in basing its preclusion order on a violation of Brady.
Our finding that the district court abused its discretion, however, does not mean that we approve of the government’s conduct in this case. The prosecution’s deliberate disobedience of the district court’s disclosure order was not only an affront to the court’s integrity, but it also exposes a lacuna in existing case law. In defense of its noncompliance, the government argued:
Defendant was not entitled to this information before trial because it is not exculpatory but could be used only to impeach the witness’ testimony and thus is subject to disclosure under the Jencks Act, Title 18, United States Code, Section 3500, not Brady.
App. at 46A. We have several problems with the government’s stated reasons for withholding exculpatory material from the defendant.
First, the government was mistaken in classifying the report as Jencks Act material and withholding it on that basis. It is true that under the Jencks Act:
[I]n any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a government witness or prospective Government witness ... shall be the subject of a subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.
18 U.S.C. § 3500(a). A “statement,” as defined by the Act, is:
(1) a written statement made by said witness and signed or otherwise adopted or approved by him;
(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or
(3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.
18 U.S.C. § 3500(e). But here, the report at issue contains the F.B.I.’s interpretation of remarks Logan made to them during an interview. It does not, therefore, contain a “statement,” as defined by the Jencks Act, that is subject to discovery only after the witness has testified on direct examination.
Second, the government was mistaken in ignoring the district court’s Brady disclosure order because it believed that the Jencks Act was dispositive. Even if the report contained statements by Logan that could be classified properly as Jencks Act material, that does not mean that it would be exempted from a pretrial disclosure order based on Brady. All Jencks Act statements are not necessarily Brady material. The Jencks Act requires that any statement in the possession of the government — exculpatory or not — that is made by a government witness must be produced by the government during trial at the time specified by the statute. Brady material is not limited to statements of witnesses but is defined as exculpatory material; the precise time within which the government must produce such material is not limited by specific statutory language but is governed by existing case law. Definitions of the two types of investigatory reports differ, the timing of production differs, and compliance with the statutory requirements of the Jencks Act does not necessarily satisfy the due process concerns of Brady. See Campagnuolo, 592 F.2d at 858-60; United States v. Murphy, 569 F.2d 771, 774 (3d Cir.), cert. denied, 435 U.S. 955, 98 S.Ct. 1588, 55 L.Ed.2d 807 (1978).
Third, and most important, the government was wrong to withhold impeachment evidence that the district court had specifically stated was encompassed by its Brady order simply because it disagreed with the court’s view of the law. Where the government has doubt as to the exculpatory nature of the material it possesses or the timing of disclosure required by an order of the district court, “it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge.” Agurs, 427 U.S. at 106, 96 S.Ct. at 2399. Counsel does not have the right to “knowingly disobey an obligation under the rules of a tribunal,” as did the prosecutor here, unless it openly asserts that no valid obligation exists. Model Rules of Professional Conduct Rule 3.4 (1983); see Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967). This is not to say that counsel does not have the capacity to disobey, but it is to say that a price must be paid for disobedience, and this price takes the form of sanctions.
V.
Remaining for decision, then, is what we perceive to be the most difficult part of this case — difficult because we find no precise guidance in the rules or the cases. We must inquire as to what sanction is available to the court where the government deliberately disregards a court directive to disclose Brady material prior to trial. A litigant who refuses to obey a direct order of the court ordinarily may be cited for contempt. 18 U.S.C. § 401. Here, however, the litigant is the United States of America, and although we do not decide, we are not at all confident that the government, qua the government, as distinguished from a specific officer, agency, or precise identifiable unit of that government, may be subject to penalties of fine or imprisonment — the normal sanctions for civil and criminal contempt. See Cyclopedia of Federal Practice § 87.81 (3d ed. 1976). But the possibility that the government may be immunized from ordinary contempt procedures does not mean that the government or its authorized agents — here, the United States Attorney and his assistants — are privileged to commit an affront to the court by conduct which, if performed by any other litigant, would be deemed contumacious, if not contemptuous. Thus, we must look elsewhere for an appropriate sanction.
It is clear that “a prosecutor who intentionally fails to make disclosure to the defense, at the earliest feasible opportunity, of the existence of evidence which tends to negate the guilt of the accused as to the offense charged,” violates certain standards of professional conduct, Standards for Criminal Justice § 3-3.11 (1980). See also Model Rules of Professional Conduct Rule 3.8 (1983). He can be subject, therefore, to disciplinary sanctions for his misconduct. Standards for Criminal Justice § 3-1.1. Likewise, he can be sanctioned for “engagpng] in conduct that is prejudicial to the administration of justice.” Model Rules of Professional Conduct Rule 8.4 (1983). Certainly, the deliberate violation of a pretrial order imposed by the court could subject an attorney for the government to disciplinary punishment under these standards. But again, we are looking to sanction the government, qua the government. Accordingly, we must put to one side the possible violations by government counsel here of recognized standards of professional conduct.
Yet notwithstanding the apparent unavailability of appropriate sanctions, this court cannot, at this late hour, overlook previous specific warnings to the government as to what this court perceived to be acceptable standards for the administration of criminal justice in the conduct of criminal trials in the courts of this judicial circuit. As early as March 5, 1974, speaking through Judge Gibbons, we suggested “that a more meticulous attention to the government’s obligations under ... Brady v. Maryland is highly desirable,” and we recommended “an affirmative policy of prompt compliance.” Ruiz, 495 F.2d at 1179. On April 11, 1977, speaking through Judge Weis, we said that “we disapprove and discourage a practice of delayed production” of Brady materials. Kaplan, 554 F.2d at 578. On February 27, 1978, Chief Judge Seitz reemphasized the necessity of “timely disclosure” of these materials and indeed, described it in terms of a prosecutorial obligation: “In my view a prosecutor’s timely disclosure obligation ... cannot be overemphasized ____” Gengler, 574 F.2d at 739 (Seitz, C.J., concurring).
This case obviously indicates that not all government prosecutors have heeded these harbingers. Some prosecutors continue to play games with both the district courts and defense counsel, unmindful of their ethical obligations as “ministers of justice.” Here, for example, the trial, which was estimated to last only four or five days, was scheduled to begin on June 20, 1983. The court ordered all exculpatory material to be turned over by June 6, 1983. As events turned out, the government refused to disgorge the second F.B.I. report on Friday, June 17, 1983, but it apparently was willing to turn it over on the next working day, Monday, June 20, 1983, or thereabouts, immediately after Logan, its chief witness, testified. Neither by brief nor at extensive oral argument has the government furnished this court with a satisfactory reason why this time frame for disclosure was critical to the conduct of its case. It has failed to demonstrate how its case or any of its witnesses would have been compromised had the prosecutor respected the court order.
Even had the report qualified as Jencks Act material as well as Brady material, we are not convinced that the prosecutor chose to acknowledge the fundamental difference between the Brady rule and the Jencks Act. Under Brady, the defendant is apprised of the existence of exculpatory material; should the matter pertain to a possible government witness and should the government elect not to call that witness, the defendant has options of how to proceed on the basis of the exculpatory information received. The same is not true under the operation of the Jencks Act: should the government elect not to produce the witness at trial whose statements are in its hands and whose testimony could conceivably assist the defendant, the defendant may never know that statements— exculpatory or otherwise — exist. Where a court has ruled that impeachment material falls more under Brady, instead of or in addition to, the Jencks Act, and orders it disclosed, the defendant has received a guarantee of protection. When the government refuses to comply with that order, its noncompliance may totally deprive the defendant of a fair trial, or even the grounds for appellate review, if the material does not emerge from the secret government files. Under such circumstances, the defendant has been denied protection of the court and is placed entirely at the mercy of the United States Attorney, or more realistically, of the assistant assigned to the case. Only if the defendant is the beneficiary of fortuitous happenstance by discovering the materials through extrajudicial means, as was the case here, are his rights vindicated. The “game” will go on, but justice will suffer.
Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: “The United States wins its point whenever justice is done its citizens in the courts.”
Brady, 373 U.S. at 87, 83 S.Ct. at 1197. We think this is an important precept. It is so important, that we should not permit it to be violated in the courts of this judicial circuit. The judiciary must take the steps necessary to insure, as much as possible, that the deeds of prosecutors will match their stated promise.
Accordingly, this court and the district courts will monitor the future conduct of government prosecutors. If it is determined that the practice so vigorously condemned by us here is repeated in the future, then judges of this court will not hesitate to call the prosecutors’ conduct to the attention of the appropriate disciplinary authorities. We will also, if we deem it appropriate, in the exercise of our judicial function, consider the adoption of a prophylactic rule of law in a future case or controversy; or, in the exercise of our administrative responsibility, we will make recommendations to appropriate committees of the Judicial Conference of the United States or of the Congress.
VI.
The preclusion order of the district court will be vacated and the cause remanded for further proceedings.
. The first F.B.I. report, which covers an April 20, 1982 interview with Logan, provides in relevant part:
[In] regards to an assessment fixed by John Starusko in the Elizabeth Township, Pa., Logan admitted that Starusko knew the complete details concerning the fact that Logan was going to receive money for the fixing of this assessment; but Logan said that Starusko did not receive any money from that deal. According to Logan, it would not have been possible for him to have completed that deal without Starusko’s help and he would not have received any money if Starusko had not aided him by getting on the telephone and talking with Sullivan and explaining to him that the assessment in Elizabeth Township had been adjusted.
App. at 53A.
The second F.B.I. report, which relates to an April 21, 1982 interview with Logan, provides in pertinent part:
Logan was then asked questions concerning some of the statement he had made the previous day during the first contact he had with the interviewing agents. He basically changed the statements he had made concerning Lou Vitsas and John Starusko. In regards to those two individuals, he denied saying that they knew anything about the fact that he was going to receive money for adjusting assessments on business properties. He mentioned that neither individual ever received money from him for any help they may have provided in the lowering of these assessments.
Id. at 55A-56A.
The third F.B.I. report, which concerns a June 11, 1982 interview with Logan, provides in relevant part:
In either the second or the third telephone conversation, Logan told Starusko that if the assessment was lowered on the property, Logan could get something out of it. In response to the statement by Logan that Logan could get something in return for a lower assessment, Starusko replied, "I don’t want to know nothing.” Starusko eventually agreed to lower the assessment on the property in the words of Logan, "As a favor to me.” Starusko did not want anything for agreeing to lower the assessment.
Sullivan gave Logan a $700 bribe in return for having the assessed value on the property in Elizabeth Township lowered. Logan told Sullivan that Starusko was getting some of the money, but Logan was not telling Sullivan the truth. Logan told Sullivan that Starusko was getting some of the $700 because Logan wanted Sullivan to give Logan the money.
Id. at 57A-58A.
. The Jencks Act provides in relevant part:
(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.
(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.
18 U.S.C. § 3500(a), (b).
. The full order reads:
AND NOW, this 23rd day of June, 1983, upon consideration of Defendant’s Second Motion in Limine filed in the above captioned matter on June 17, 1983,
IT IS HEREBY ORDERED that said Motion is GRANTED in part and DENIED in part, to wit:
1. GRANTED, in that Patrick Logan will be precluded from testifying at the trial of this case for the following reasons:
a. At the pretrial hearing in this matter, held on June 3, 1983, the Court ordered the government to turn over all materials of a directly exculpatory nature, pursuant to Brady v. Maryland, 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (1963), by June 6, 1983.
b. In response to the Court’s order at the hearing, the government informed the Court that there was no directly exculpatory material.
c. On June 17, 1983, the defendant filed this motion, attaching to it an FBI investigation report of April 23, 1982, which summarized a statement of Patrick Logan.
d. In that report, the FBI agent summarized Patrick Logan’s statement as follows: "[Logan] denied saying that ... [Starusko] knew anything about the fact that he was going to receive money for adjusting assessments on business properties.” Defendant’s Second Motion in Limine, Exhibit C.
e. Defendant’s Second Motion in Limine further reveals that he obtained this report through some means other than the government and that, without producing this report, the government had asserted by letter of June 6, 1983, that it had produced, and was producing through the June 6th letter, all exculpatory material. Defendant’s Second Motion in Limine, Exhibits A and B.
f. The Court finds that the aforesaid report is of a directly exculpatory nature and, therefore, further finds that the government failed to comply with this Court's order of June 3, 1983, by not turning over all Brady material.
g. Accordingly, the Court exercises its discretion to sanction for failing to comply with the Brady case by precluding the testimony of Patrick Logan at the trial of this case. See United States v. Campagnuolo, 592 F.2d 852, 858 (5th Cir.1979).
2. DENIED, in all other respects.
App. at 50A-51A.
. The Brady rule traces its roots to two decisions of this court, United States ex rel. Thompson v. Dye, 221 F.2d 763, 765 (3d Cir.1955), and United States ex rel. Almeida v. Baldi, 195 F.2d 815, 820 (3d Cir.1952), cert. denied, 345 U.S. 904, 73 S.Ct. 639, 97 L.Ed. 1341 (1953), which stand for the proposition that suppression of evidence favorable to the accused is sufficient to amount to a denial of due process. Brady, 373 U.S. at 87, 83 S.Ct. at 1196.
. This is the standard of materiality to be applied where the defendant has made only a general request for exculpatory evidence. See Agurs, 427 U.S. at 112, 96 S.Ct. at 2401. As the defendant here asked the government to supply him with all exculpatory evidence in its possession, we find his request to be general and apply the standard accordingly.
. Had the district court not premised the imposition of its sanction on a Brady violation, the sanction might have passed 'muster as a valid exercise of its inherent authority to punish for the willful disregard of a court order. See, e.g., Higgs, 713 F.2d at 44 n. 6. Since this issue was not raised here or in the district court, we will not meet it at this time.
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:
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sc_certreason
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
CHICAGO & NORTH WESTERN RAILWAY CO. et al. v. ATCHISON, TOPEKA & SANTA FE RAILWAY CO. et al.
No. 8.
Argued April 19, 1967.
Decided May 29, 1967
Hugh B. Cox argued the cause for appellants in No. 8. With him on the briefs were William H. Allen, Nuel D. Belnap, Richard M. Freeman, Bryce L. Hamilton, Raymond K. Merrill and Nye F. Morehouse.
Arthur J. Cerra argued the cause for the United States et al. in No. 23. With him on the brief were Solicitor General Marshall, Assistant Attorney General Turner, Robert B. Hummel, Jerry Z. Pruzansky and Robert W. Ginnane.
Howard J. Trienens argued the cause for appellees Atchison, Topeka & Santa Fe Railway Co. et al. With him on the brief were Douglas F. Smith, George L. Saunders, Jr., and Gary L. Cowan. George L. Saunders, Jr., argued the cause for appellees Missouri-Kansas-Texas Railroad Co. et al. With him on the brief was John E. McCullough. Calvin L. Rampton argued the cause for appellees Arizona Corporation Commission et al. With him on the brief were Robert Y. Thornton and Richard W. Sabin. Cyril M. Saroyan argued the cause for appel-lees the State of California et al. With him on the brief were Mary Moran Pajalich and J. Thomason Phelps.
Walter R. McDonald filed a brief for the Southern Governors’ Conference et al., as amici curiae, in No. 23.
Together with No. 23, United States et al. v. Atchison, Topeka & Santa Fe Railway Co. et al., also on appeal from the same court.
Me. Justice Stewart
delivered the opinion the Court.
This is a controversy between the Mountain-Pacific railroads and certain Midwestern railroads, involving the proper division between them of joint rates from through freight service in which they both participate. Dissatisfied with their share of existing divisions, the Midwestern carriers called upon the Interstate Commerce Commission’s statutory authority to determine that joint rate divisions “are or will be unjust, unreasonable, inequitable, or unduly preferential,” and to prescribe “just, reasonable, and equitable divisions” in their place. The Commission found that the existing divisions were unlawful, and established new divisions which, on the average, gave the Midwestern carriers a greater share of the joint rates. The District Court set aside the Commission’s order on the ground that certain of its findings were deficient. We noted probable jurisdiction, 383 U. S. 964, to consider important questions regarding the Commission’s powers and procedures raised by the District Court’s decision.
I.
There were originally three groups of railroads involved in the proceedings before the Commission: the Eastern, Midwestern, and Mountain-Pacific carriers. The Eastern railroads operate in the northeastern area of the United States extending south to the Ohio River and parts of Virginia and west to central Illinois. Midwestern Territory lies between Eastern Territory and the Rocky Mountains, and the rest of the United States to the west constitutes Mountain-Pacific Territory. The latter is subdivided into Transcontinental Territory — comprising the States bordering the Pacific, Nevada, Arizona, and parts of Idaho, Utah, and New Mexico — and Inter-mountain Territory. The railroads operating in Southern Territory, which includes the southeastern United. States, were not involved in the proceedings before the Commission.
Railroads customarily establish joint through rates for interterritorial freight service, and the divisions of these rates, fixed by the Commission or by agreement, determine what share of the joint tariffs each of the several participating carriers receives. See St. Louis S. W. R. Co. v. United States, 245 U. S. 136, 139-140, n. 2. In 1954 the Eastern carriers filed a complaint with the Commission seeking a greater share of the joint tariff on freight traffic east and west between Eastern Territory and Transcontinental Territory. Shortly thereafter, the Midwestern carriers also filed a complaint, requesting higher divisions on (1) their intermediate service on Eastern-Transcontinental traffic, (2) their service on freight traffic east and west between Midwestern Territory and Transcontinental Territory. Some of the Midwestern lines had long believed that the Mountain-Pacific carriers enjoyed an unduly high share of the joint tariffs for these categories of traffic. When joint rates for traffic to the western United States were first established in the 1870’s, rates were divided on the basis of the miles of carriage rendered by the participating railroads, but the Mountain-Pacific carriers enjoyed a 50% inflation in their mileage factor. In 1925, after the Commission had begun, but not yet completed, an investigation of the existing divisions, the Mountain-Pacific carriers agreed to modest increases in the Midwestern railroads' share of joint rates. The divisions between Mountain-Pacific and Midwestern carriers have remained unchanged since that time.
In the proceedings before the Commission, which consolidated the Eastern and the Midwestern complaints, the Mountain-Pacific railroads not only defended the existing divisions, but sought a 10% increase in their share. Regulatory commissions of States in Mountain-Pacific Territory also intervened. The consolidated proceedings involved rate divisions affecting about 300 railroads, which voluntarily aligned themselves into three groups— Eastern, Midwestern, and Mountain-Pacific — and submitted evidence and tried the case on this group basis. A great deal of time was consumed in compiling and introducing massive amounts of evidence — more than 800 exhibits and over 11,200 pages of testimony. The Hearing Examiners made a recommended report in 1960. After considering written briefs and oral arguments from the various groups of parties, the Commission issued its original report in March of 1963. The Commission found the existing divisions to be unlawful, and prescribed increased divisions for the Midwestern and Eastern carriers, effective July 1, 1963.
When exercising its statutory authority to establish “just and reasonable” divisions under § 15 (6) of the Interstate Commerce Act, the Commission is required to:
“[G]ive due consideration, among other things, to the efficiency with which the carriers concerned are operated, the amount of revenue required to pay their respective operating expenses, taxes, and a fair return on their railway property held for and used in the service of transportation, and the importance to the public of the transportation services of such carriers; and also whether any particular participating carrier is an originating, intermediate, or delivering line, and any other fact or circumstance which would ordinarily, without regard to the mileage haul, entitle one carrier to a greater or less proportion than another carrier of the joint rate, fare or charge.”
After reviewing the nature of the traffic involved and considering the special claims of the various groups, the Commission found that “none of the contending groups is more or less efficiently operated than another,” and that “there are no differences in the importance to the public attributable to the three contending groups of carriers.” Its decision thus turned on more direct financial considerations, to which the Commission devoted a substantial part of its lengthy report. Under Commission practice, these financial considerations are divided into “cost of service” and “revenue needs.” The former consists of the out-of-pocket expenses directly associated with a particular service, including operating costs, taxes, and a four percent return on the property involved. “Revenue needs” refers to broader requirements for funds in excess of out-of-pocket expenses, including funds for new investment.
In determining cost of service, the Commission relied upon a cost study prepared by the Mountain-Pacific railroads, but introduced certain modifications that produced different results. The Commission found that existing divisions on Eastern-Transcontinental traffic gave the Mountain-Pacific carriers revenues that exceeded their costs by 57%, while the Midwestern and Eastern railroads received only 43% and 22% more, respectively, than their costs for the service they contributed. On Midwestern-Transcontinental traffic, the Commission found that the divisions gave the Mountain-Pacific carriers revenues 71% above cost, while the Midwestern lines received only 39% above cost; on this traffic the Midwestern railroads bore 31.5% of the total cost but received only 27.1% of the total revenue.
In assessing comparative revenue needs, the Commission found, that the average rate of return for 1946-1958, based on net railway operating income from all services as a percentage of the value of invested property, was 3.40% for the Eastern roads, 3.49% for the Midwestern group, and 4.64% for the Mountain-Pacific carriers. The Commission also found that the Mountain-Pacific railroads had the most favorable record and trend in both freight volume and freight revenues, and the Eastern railroads the least favorable, with the Midwestern roads occupying an intermediate position. In response to the Mountain-Pacific carriers’ complaint that their net operating income from all services had not increased as fast as net investment in recent years, the Commission noted that this was primarily due to disproportionate passenger deficits that offset favorable income from freight services. The Commission also discounted the contention that the Mountain-Pacific carriers were entitled to greater revenues to provide funds for new investment, finding that the needs of the various carrier groups for such funds were not appreciably different. The claim of the Midwestern carriers that they had the most pressing need for revenues was also rejected by the Commission.
From all this evidence, the Commission concluded “that there should be increases in [the Eastern carriers’] divisions reflecting revenue need as well as cost.” While the very poor financial position and high revenue needs of the Eastern carriers were thus important elements in prescribing increases in their divisions, the Commission went on to find cost considerations the controlling factor with regard to the Midwestern divisions: “As between the [Mountain-Pacific railroads] and the [Midwestern] railroads the differences in earning power are less marked, but our consideration of the evidence bearing on cost of service previously discussed convinces us that the primary midwestern divisions as a whole are too low.”
In establishing higher divisions for the Eastern carriers, the Commission relied upon the existing percentages governing divisions of the various rates between well-defined subareas in Eastern Territory and points in Transcontinental Territory. The Commission simply increased the percentages that the Eastern carriers formerly received on this traffic. However, the Commission concluded that it could not follow this procedure with respect to Midwestern divisions on Eastern-Transcontinental and Midwestern-Transcontinental traffic. It found that Midwestern-Transcontinental subgroupings were not well-defined and were in some cases not properly related to distance. Thus it was not feasible to assemble rates from various Midwestern points to Transcontinental points into common groups and apply fixed percentage divisions to each group in order to determine the respective shares of the Midwestern and Mountain-Pacific carriers. Instead, the Commission resorted to a weighted mileage basis of apportionment, determined through the use of divisional scales. The Commission has frequently used such scales in the past, and their use in this case was suggested by both the Midwestern and Mountain-Pacific carriers. Under the system adopted, the mileage contributed by each carrier to the joint service is broken down into 50-mile blocks. The scale chosen assigns each block a number. A large number is assigned the first block, and a smaller number to successive 50-mile increments; this is designed to reflect terminal and standby costs incurred regardless of the length of carriage contributed. Each carrier then receives a share of the joint revenue in proportion to the sum of scale numbers corresponding to its mileage contribution. To determine the divisions between the Midwest-ern and Mountain-Pacific carriers, the Commission used a 29886 scale — so named because it was developed in another interterritorial divisions case bearing that docket number. This scale assigns a factor of 65 to the first 50-mile block of carriage and a factor of 12 to each successive 50-mile increment. The Commission decided that the Midwestern carriers’ shares would be determined by an unadjusted 29886 scale, but that the Mountain-Pacific carriers’ shares should be based on the same scale with the mileage factors inflated by 10% to reflect certain greater costs of carriage in the mountainous West. Thus, for their carriage, the Mountain-Pacific carriers would enjoy a factor of 72 for the first 50-mile block, and a factor of 13 for successive 50-mile increments. For any joint carriage, the Midwestern and Mountain-Pacific carriers would translate their mileage contributions into scale numbers, and divide the proceeds in proportion to the numbers so obtained. The divisions thus essentially reflect a mileage basis, with disproportionate weight assigned the first 50 miles of carriage and an overall inflation factor favoring the Mountain-Pacific carriers. The Commission found that the net effect of its revised scale would be to “produce moderate increases in some of the most important midwestern divisions.”
After entertaining petitions for reconsideration, the Commission adopted a supplemental report in late 1963. For the first time, a few carriers abandoned the three-group basis on which all the prior proceedings had been conducted. Requests for special treatment were made on behalf of one Mountain-Pacific road, the Denver & Rio Grande, and two Midwestern carriers, the Missouri-Kansas-Texas (Katy) and the St. Louis-San Francisco (Frisco), on the ground that the divisions prescribed by the Commission had an unduly harsh effect on them. The Commission considered and largely rejected these and other criticisms of its original decision, and issued a supplemental order substantially reaffirming its original order after making minor technical modifications.
Eleven of the Mountain-Pacific carriers brought an action in the District Court to enjoin and set aside the Commission’s orders and succeeded in obtaining preliminary injunctions. Other Mountain-Pacific carriers, the western state regulatory commissions, and the Katy and the Frisco intervened as plaintiffs, while the Eastern carriers and a group of Midwestern railroads intervened on the side of the Government and the Commission as defendants. In January 1965 the District Court handed down the decision setting aside the Commission’s orders. The court held that the findings made by the Commission with regard to the revenue need, cost of service, public importance, etc., of the Eastern, Midwestern, and Mountain-Pacific carriers were insufficient because they were made on a group basis. In the view of the District Court, the Interstate Commerce Act required the Commission to make such findings with respect to each of the 300 railroads involved, on an individual basis. The District Court further held that in a divisions case the Commission is obliged to determine, in precise dollar amount, the revenue needs of each individual railroad, and also the revenue effect on each individual railroad, again in precise dollar amount, of the new divisions that the Commission establishes. The District Court in conclusion stated:
"[T]hat to comply with... the Interstate Commerce and the Administrative Procedure Acts... the Commission is required to make affirmative findings which disclose that the requirements of Section 15 (6) have been met and the factors therein required have been determined and considered, not only as to the groups of roads involved but with respect to each carrier affected in said groups; that findings must be made as to the amount of revenue, in terms of dollars, required by the respective carriers affected in any new divisions prescribed, the financial effect of the Commission’s orders in terms of dollars as to the carriers and the extent to which the new divisions prescribed will produce the revenue found to be required...."
The Eastern carriers, the Midwestern defendants, and the Government and the Commission all appealed the decision of the District Court. Thereafter, all of the Eastern and some of the Midwestern carriers reached settlement agreements with the Mountain-Pacific carriers covering the rate divisions affecting them. We accordingly vacated the judgment of the District Court with respect to the divisions of the Eastern and the settling Midwestern railroads, and remanded the relevant portions of the appeals to the District Court with instructions to dismiss as moot. 383 U. S. 832, 384 U. S. 888. Thus, the principal dispute remaining concerns the divisions between the Mountain-Pacific carriers and the eight principal Midwestern roads that are appellants in No. 8.
II.
None of the appellees now defends the position, espoused by the District Court, that the Commission was required to make separate individual findings for each of the 300 railroads involved in the proceedings before it.
But the error in that position, which rejects over 40 years of consistent administrative practice, requires comment.
In its first decision involving rate divisions under § 15 (6), the New England Divisions Case, 261 U. S. 184, the Court upheld the authority of the Commission to take evidence and make findings on a group basis. Speaking for a unanimous Court, Mr. Justice Brandéis noted that the “actual necessities of procedure and administration” required procedures on a group basis in ratemaking cases, and that a similar practice was appropriate in divisions cases. The complexity of the subject matter and the multiplicity of carriers typically involved in divisions cases were such that a wooden requirement of individual findings would make effective regulation all but impossible. The Court held that the Interstate Commerce Act permits the Commission to proceed on a group basis and to rely on “evidence which the Commission assumed was typical in character, and ample in quantity” to justify its findings, reasoning that:
“Obviously, Congress intended that a method should be pursued by which the task, which it imposed upon the Commission, could be performed.... To require specific evidence, and separate adjudication, in respect to each division of each rate of each carrier, would be tantamount to denying the possibility of granting relief. We must assume that Congress knew this....” 261 U. S., at 196-197.
Both the Court and the Commission have consistently adhered to this construction of the Act’s requirements, and its rejection by the District Court in this case was error.
The pragmatic justifications for the Commission’s group procedures are obvious. Even on a group basis, the Commission proceedings in this case required a voluminous record and were not completed until nearly 10 years after the complaints were filed. To demand individual evidence and findings for each of the 300 carriers in the Commission proceedings would so inflate the record and prolong administrative adjudication that the Commission’s regulatory authority would be paralyzed.
Nor do considerations of fairness require disregard of administrative necessities. The premise of group proceedings, as the New England Divisions Case explicitly recognized, is that evidence pertaining to a group is typical of its individual members. 261 U. S., at 196-199. See also Beaumont, S. L. & W. R. Co. v. United States, 282 U. S. 74, 82-83. It has always been accepted that an individual carrier may challenge this premise and, on proper showing, receive independent consideration if its individual situation is so atypical that its inclusion in group consideration would be inappropriate. It is the Commission’s practice to accord independent treatment to an individual carrier when a proper request for special consideration is made. But no such requests were made during the hearings and presentation of evidence in this case. Instead, the individual carriers voluntarily aligned themselves into groups, presented evidence and tried the case on a group basis, and asked the Commission to prescribe new divisions on a group basis. In this situation, the Commission was not obliged on its own motion to demand evidence and make findings on an individual basis. Departure from the practicalities of group procedure is justified only when there is a real need for separate treatment of a given carrier; the individual carriers themselves, which have the closest understanding of their own situation and interests, are normally the appropriate parties to show that such need exists.
The Denver & Rio Grande, the Katy, and the Frisco did request independent consideration in petitions for reconsideration of the Commission’s original decision. Their claims will be discussed below in Part VI of this opinion, but it should be noted that at no point during the administrative hearings or the presentation of evidence did they raise any claim for separate treatment. Moreover, their contention basically is not that the group evidence or findings were unrepresentative, but rather that the divisions prescribed by the Commission have an unduly harsh impact on them. Even if it were assumed that the Commission’s- disposition of this contention was erroneous, that would be no ground for requiring the Commission to make individual findings for the rest of the 300 carriers involved.
III.
Among the errors that the District Court found in the Commission’s decision was its failure to state the revenue needs of each individual carrier in terms of precise dollar amount. While not defending the requirement of individual findings, the appellees do contend that the Commission was required to determine the revenue needs of the various carrier groups in precise dollar amount, and they also urge other errors in the Commission’s treatment of revenue needs. We believe, however, that in the case’s present posture these criticisms are largely misdirected.
In increasing the shares of the Eastern railroads the Commission did rely on revenue needs as well as costs, but it found costs alone the controlling factor in raising the divisions of the Midwestern carriers. In the conclusions in its original report, the Commission stated that there should be increases in the Eastern divisions “reflecting revenue need as well as cost,” but in the very next sentence it went on to say that as between the Midwestern and Mountain-Pacific roads, “differences in earning power are less marked, but our consideration of the evidence bearing on cost of service previously discussed convinces us that the primary midwestern divisions as a whole are too low.” Its reliance on costs alone in increasing the Midwestern shares is confirmed by the Commission’s supplemental report, in which it again rejected a request of the Midwestern carriers for even higher divisions based on their claim of pressing revenue needs: “It was our stated view that [increases in the Midwestern divisions] were supported by the evidence concerning cost of service, but that the proposal of the midwestern lines gave undue weight to their claimed revenue need.” Since revenue needs were important factors only with regard to the Eastern divisions, and those divisions are no longer in issue because the Eastern roads have settled with the Mountain-Pacific carriers, any errors committed by the Commission in its treatment of revenue needs are no longer relevant. But even assuming that the Commission did attach some limited significance to revenue needs in raising the Midwestern divisions, we cannot conclude that its treatment of revenue needs was legally inadequate. The Commission devoted over 25 pages of its reports to revenue needs. It discussed at length the proper basis for computing rates of return and found the rates of return for the various carrier groups; it also examined the record and trends in net railway operating income from all services, and from freight and passenger services considered separately.
The Commission placed considerable emphasis on rates of return in its discussion of comparative revenue needs. Following its established practice, it found that a value basis, rather than book cost, as urged by the Mountain-Pacific roads, was the proper method for calculating the investment base. The evidence disclosed that the Mountain-Pacific fines had enjoyed a 4.64% return, as opposed to 3.40% for the Eastern fines, and 3.49% for the Midwestern fines. The suggestion that these findings in terms of rate of return were insufficient because they did not express revenue needs in terms of absolute dollar amount is totally novel and unreasonable. This suggestion seems to stem from a misconception of the Commission’s function in divisions cases. Its task is not to transfer lump sums of cash from one carrier to another, but to “make divisions that colloquially may be said to be fair.” B. & O. R. Co. v. United States, 298 U. S. 349, 357. The relative financial strength of the carriers involved is a key factor in this task, see the New England Divisions Case, 261 U. S. 184, 189 — 192, and the use of comparative rates of return is an obviously appropriate basis for the exercise of administrative judgment. Rates of return are a familiar tool of analysis in the financial community. The Commission has long relied on this form of analysis in divisions cases, and in passing on the Commission’s performance in such cases, this Court has never suggested that ultimate findings of revenue need in terms of absolute dollar amount were required. Appellees are unable to suggest any clear regulatory purpose that would be served by such findings. We decline now to impose upon the Commission a rigid mechanical requirement that is without foundation in precedent, practice, or policy.
Appellees, especially the regulatory commissions, vigorously contend that reliance on rates of return showing the Mountain-Pacific carriers in a heavily favorable position was inappropriate because the Commission overlooked the Mountain-Pacific carriers’ disproportionate need for funds for new investment. It might be questioned whether forcing carriers in other parts of the country to accept divisions lower than those to which they would otherwise be entitled is a sensible means of raising funds for new investment in the Far West. But the Commission did not reach this issue because it found that the Mountain-Pacific carriers did not in fact have a greater need for investment funds than railroads elsewhere:
“We are unable to agree with the [Mountain-Pacific carriers] and [the regulatory commissions] that the public interest warrants increases in the divisions of the mountain-Pacific railroads in order to provide a source of investment funds required for enlarged facilities commensurate with industrial development in that region. The railroads in all sections of the country are faced with the continuing necessity of raising funds for additions and betterments and new equipment, and we cannot recognize any difference in the degree of this urgency among the territorial groups.”
The appellees have sought to convince us that this finding is factually incorrect, but we decline to invade the administrative province and second-guess the Commission on matters within its expert judgment. B. & O. R. Co. v. United States, 298 U. S. 349, 359; Alabama G.S.R. Co. v. United States, 340 U. S. 216, 227-228.
The appellees also contend that the Commission erred in its treatment of passenger deficits. In discussing revenue needs, the Commission pointed out that since 1950-1952 the Mountain-Pacific carriers had enjoyed substantial increases in operating revenue from freight services, while the freight revenue of the Eastern carriers had declined. It also noted that the Midwestern carriers’ freight revenues had remained relatively constant, and concluded that these comparative trends were likely to continue. The Mountain-Pacific carriers, however, complained that, despite their favorable trend in freight revenues and large amounts of new investment that they had recently made, their rate of return from all services had declined. In reply, the Commission observed that the Mountain-Pacific carriers’ passenger deficits had increased substantially since 1950-1952 and had offset their impressive performance in freight revenues.
The Mountain-Pacific roads now argue that the Commission’s decision to increase the Midwestern divisions was based almost exclusively on its treatment of Mountain-Pacific passenger deficits. They further contend that this treatment was invalid on the grounds that it constituted unfair procedural surprise, that the statute does not permit the Commission to differentiate railroads’ performance as freight carriers and passenger carriers when it assesses revenue needs in a freight rate divisions case, and that the Commission erred in assuming that, because their statistical passenger deficits had increased, the Mountain-Pacific carriers were capable of making a real improvement in their overall performance by reducing passenger service.
We regard the assumption that the Commission attached great importance to Mountain-Pacific passenger deficits in raising the Midwestern divisions as fanciful. As we have already noted, those increases were based exclusively or almost entirely on cost considerations. To the extent the Commission may have relied on comparative revenue needs, passenger deficits were not a significant factor. The discussion of passenger deficits in the Commission’s original report occurred primarily in the context of comparing the revenue needs of the Mountain-Pacific carriers with those of the Eastern roads, when the Commission emphasized that the Eastern railroads had been much more successful in curbing losses on passenger service than the Mountain-Pacific carriers. Any error in the Commission’s treatment of passenger deficits prejudiced the Midwestern as well as the Mountain-Pacific carriers, for in rejecting a Midwestern revenue needs argument in its supplemental report, the Commission noted that the Midwestern carriers had also done a much poorer job than the Eastern carriers in halting the swell of passenger deficits. Furthermore, the Commission did not ignore the overall financial strength of the various groups of carriers, but found that the Mountain-Pacific carriers’ rate of return from all services was substantially higher than that of either the Midwestern or Eastern carriers.
The claim of unfair surprise is strained in light of the fact that the Commission has frequently differentiated passenger and freight revenues in freight rate division cases. While passenger deficits did not become an important issue in this case until the report of the Hearing Examiners was handed down, the Commission relied upon statistics which were matters of public record, and the Mountain-Pacific carriers had ample opportunity to debate the issue in their exceptions to the Hearing Examiners’ report and their petitions for reconsideration of the Commission’s original decision. And while the Commission has sometimes acted to offset passenger deficits in freight rate cases, the issues are quite different when, in a divisions case, it is argued that carriers in one part of the country should subsidize the passenger operations of carriers elsewhere.
If the Commission were to give controlling weight to passenger deficits in a divisions case, it might be appropriate to take more evidence on the issue and discuss it in greater depth than the Commission did here. But in light of the fact that, in this case, passenger deficits were of negligible relevance to the Commission’s decision to increase the Midwestern divisions, we find no errors in the Commission’s findings and procedure on this point that would justify setting aside its order.
IV.
Rejection of the appellees’ attacks on the Commission’s treatment of revenue needs does not exhaust their arsenal. For they argue that the Commission’s findings on costs, which were the basis of its decision to raise the Midwestern divisions, were also infected with serious error.
All are agreed that the relevant costs are those of the Eastern-Transcontinental and Midwestern-Transcontinental freight traffic to which the divisions apply. But throughout the proceedings there has been sharp dispute as to the proper method of ascertaining these costs. At the beginning of the administrative hearings, the Midwestern and Eastern carriers relied principally on the Commission’s standard Rail Form A, a formulation based on average freight data which, as the Commission noted, “has been widely used as an acceptable means of comparing relative transportation costs.” The Mountain-Pacific carriers took the position that Rail Form A, based on averages of all freight service, was not a proper yardstick for measuring the costs of the particular traffic involved in the contested divisions, which, they maintained, had certain distinctive characteristics. The Mountain-Pacific roads prepared their own cost system, based upon a study of this traffic. The Midwestern and Eastern lines responded with other material, and the Midwestern carriers conducted their own special study of line-haul services. Disputes over the applicability of Rail Form A and the various approaches urged by the parties occupied a large part of the administrative proceedings. As the Commission observed:
“The evidence pertaining to the cost studies of the [Mountain-Pacific carriers] and the midwestern lines was extensive. In addition to the detailed testimony of the cost analysts who planned the studies and supervised their compilation, evidence was presented by many other witnesses concerned with operating, statistical, engineering, and mathematical aspects of the projects. In criticism of the studies the [Eastern carriers] and the midwestern lines also introduced detailed evidence of the same general nature and considerable bulk.”
After carefully considering this evidence, the Commission decided to base its cost findings on the special cost study and analysis prepared by the Mountain-Pacific carriers. However, it made certain adjustments in the Mountain-Pacific analysis which, in the judgment of the Commission, more accurately reflected the true costs of the traffic involved.
The Commission substituted its own ratio for empty-car returns, derived from Rail Form A, for that devised by the Mountain-Pacific carriers. It summarized its reasons for this choice in its supplemental report:
“It is difficult to ascribe the empty movement of a car to a particular commodity or class of traffic because of the variety of the lading, and the fact that cars used occasionally for hauling transcontinental traffic may at other times serve widely different uses, including local movements within each territory.... The defendants urge that insufficient consideration was given to special cars.... They would be included in [Rail Form A] tending to increase the empty-return ratios in all territories. Here they accounted for only about 4 percent of the total movement....
“Many special studies of empty-return movement were undertaken in these proceedings, each showing a different result. The deficiencies in the [Mountain-Pacific carriers’] studies of general-purpose boxcar empty return... are so serious in our opinion as to render them without value. We adhere to our prior finding that the 7-day studies made under an order of the Commission and based on uniform instructions to all the railroads as to how the studies were to be made, afford a more reliable basis of comparison among territories. Moreover, on the basis of the evidence in this record, the 7-day studies provide appropriate comparative ratios to the traffic in issue.”
The Commission also disagreed with the Mountain-Pacific study’s treatment of the “constant cost” element of road costs — that which is unrelated to volume of traffic. It found the accounting methods used to distribute these costs in Rail Form A to be more accurate. The Mountain-Pacific roads claimed that this method unduly favored the Midwestern lines by improperly ascribing the maintenance costs of branch and light-density main lines to the cost of their transcontinental traffic. The Commission, however, found that the evidence showed:
“[T]hat the proportion of branch line mileage for each group is almost the same and the amount of traffic on branch lines is so small that some other factors cause the lower unit cost in mountain-Pacific territory. The principal factor is clearly the high density of traffic, 76 percent higher than the Midwest.
“Although the cost per mile may be somewhat higher in mountainous territory, this higher cost is shared by so many more tons of traffic that the cost per ton-mile is lower.
“It is the light density on the main lines in the Midwest which causes [their] higher costs. These lines are used by bridge traffic, and it is, therefore, quite correct to charge this bridge traffic with its proportionate share of maintaining the lines over which it moves.”
The Commission made certain adjustment in the basis for determining locomotive costs; the Mountain-Pacific carriers’ objections to this adjustment were directed at the Commission’s reliance on differences it found between engine districts in Eastern Territory and those elsewhere. Any error in this adjustment is thus relevant only to the Eastern divisions, which are no longer in issue. The Commission also substituted Rail Form A treatment of car service costs, after finding that the Mountain-Pacific study ignored actual territorial differences in this item. Again, this issue related only to the Eastern divisions. In ascertaining the cost attributable to equipment used in the service at issue, the Commission chose a 4% rate of return on investment, a figure traditionally employed by it for this purpose, rather than the 6% figure urged by the Mountain-Pacific carriers. And, in harmony with its treatment of revenue needs, the Commission chose its standard value basis to measure the investment involved, rather than the book cost used by the Mountain-Pacific study.
From the Mountain-Pacific cost study, as adjusted in these particulars, the Commission found that the Mountain-Pacific carriers enjoyed a much higher margin of revenue over costs than did the Midwestern carriers, and for this reason prescribed increases in the Midwestern divisions.
In the proceedings before the District Court, the Mountain-Paeific carriers generally attacked the adjustments made by the Commission in their cost study, claiming that their approach more accurately reflected the costs involved. They particularly maintained that the Commission should have forced the Eastern and Midwestern carriers to produce evidence on empty-car return ratios on the same basis that the Mountain-Pacific carriers had used in their cost study. The Midwestern carriers, however, had come forward with specific empty-return data, and the Commission also observed that:
“In the prehearing conference in the instant cases the advisability of instituting an overall general investigation was discussed but the [Mountain-Pacific carriers] opposed the suggestion, and the matter was dropped.... Nor do we see in the record any basis for assuming that the eastern and midwestern complainants withheld vital evidence merely because they had different conceptions of the nature and extent of facts to be developed.”
The Mountain-Pacific carriers also contended that certain factual premises on which the Commission based its allocation of road maintenance costs were erroneous, and that there was no foundation for the Commission’s choice of a value basis for investment rather than book cost.
The District Court did not directly deal with these contentions, stating rather cryptically that in light of its conclusions on the revenue needs issues, “it is unnecessary to discuss [the cost issues]. However, no inference is to be drawn that the court is of the opinion that the [cost issues], or any other numbered issues not discussed in this opinion, are of the nature it would be required to decide should they be raised at some future time.”
The appellees argue that since the District Court failed to pass on the cost issues, we are precluded from doing so. It is true that we have occasionally stated that it is not our general practice “to review an administrative record in the first instance.” United States v. Great Northern R. Co., 343 U. S. 562, 578; Seaboard Air Line R. Co. v. United States, 382 U. S. 154, 157. But we think that policy is not applicable on the facts of this case. The presentation and discussion of evidence on cost issues constituted a dominant part of the lengthy administrative hearings, and the issues were thoroughly explored and contested before the Commission. Its factual findings and treatment of accounting problems concerned matters relating entirely to the special and complex peculiarities of the railroad industry. Our previous description of the Commission’s disposition of these matters is sufficient to show that its conclusions had reasoned foundation and were within the area of its expert judgment. B. & O. R. Co. v. United States, 298 U. S. 349, 359; New York v. United States, 331 U. S. 284, 328, 335, 349. Thirteen years have elapsed since the complaints in this case were first filed. The appellees’ attacks on the legal validity of the Commission’s findings on cost are so insubstantial that no useful purpose would be served by further proceedings in the District Court. We conclude that there was no legal infirmity in the Commission’s cost findings.
Y.
The Commission devised a special divisional scale, adapted to the particular circumstances of this case and designed to produce the moderate overall increases in the Midwestern divisions that it found justified by the evidence relating to cost of service. Appellees contend that the Commission did not
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_notice
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D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Decisions that affect life, liberty, or property must be preceded by adequate notice and an opportunity for a fair hearing. Did the agency give proper notice? 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".
Orville TAYLOR v. UNITED STATES of America, Appellant.
No. 82-1452.
United States Court of Appeals, Third Circuit.
Argued May 31, 1983.
Decided June 21, 1983.
Rehearing and Rehearing In Banc Denied July 21, 1983.
Carter Phillips, Washington, D.C. (argued), Peter F. Vaira, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Dawn MacPhee, Asst. U.S. Atty., Philadelphia, Pa., for appellant; Donal M. Hill, Commander, JAGC, U.S. Navy, Alexandria, Va., of counsel.
Stanley M. Shingles, Philadelphia, Pa., for appellee.
Before GIBBONS and BECKER, Circuit Judges, and WEBER, District Judge.
Hon. Gerald J. Weber, United States District Judge for the Western District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
GIBBONS,
Circuit Judge.
The United States appeals from a judgment of the district court ordering the release of Orville Taylor from military custody and restraining the government from surrendering him to the government of Spain for service of a sentence. We affirm.
I.
Mr. Taylor began a four year enlistment in the United States Navy in December 1973. He later executed a two-year voluntary extension of enlistment. Thus his term of voluntary enlistment was scheduled to terminate on December 30, 1979. In October of 1977, while Taylor was assigned to the naval base at Rota, Spain, he was involved in an off-base automobile accident which resulted in the death of a Spanish citizen. Pursuant to Policy Directive 110.5, Joint U.S. Military Group — Military Assistance Advisory Group, which implements the Agreement of Friendship and Cooperation between the United States and Spain of August 6,1970, Mr. Taylor was immediately placed on legal hold status pending a decision as to whether he would be subject to the jurisdiction of the Spanish authorities. In that status, notice of which he acknowledged in writing on October 18, 1977, Taylor would not be transferred from or permitted to leave Spain without prior approval of the Commander, U.S. Naval Activities, Spain. The United States requested Spain to waive its right to exercise jurisdiction in favor of the United States, but Spain declined. Thus no military charges were pressed against Taylor. On August 7, 1978 he was criminally indicted by the Spanish authorities for involuntary manslaughter. Pursuant to Article XVIII of the January 24, 1976 Agreement in Implementation of the Treaty of Friendship and Cooperation, 27 U.S.T. 3095, 3116, T.I.A.S. No. 8361, the United States Naval authorities requested and were granted responsibility for Taylor’s custody pending disposition of this charge. On July 16, 1979 Taylor was found guilty. Thereafter he was sentenced to eighteen months in prison and assessed civil damages of $15,500.00. Taylor appealed, but a Spanish appellate court affirmed his sentence. Upon affirmance of the conviction on November 6, 1980 the Spanish authorities requested the United States Naval authorities to deliver Taylor on November 7, 1980 for service of his sentence. Meanwhile, however, the term of Taylor’s extended voluntary enlistment had expired. He remained at the naval base at Rota and continued to receive military pay and benefits. There is a factual dispute over whether or not he requested a formal discharge, but it is undisputed that he was never formally discharged. Instead, the Navy authorized a voluntary extension of Taylor’s term of enlistment, and, on January 22,1980, he refused to execute it. Thereafter, the Navy purported, unilaterally, to extend the term of his enlistment involuntarily. That action was taken pursuant to Article 3840260(5)(h) of the Bureau of Naval Personnel Manual (BUPERSMAN) which reads:
5. Under certain conditions members may legally be retained beyond the date of expiration of enlistment or other period of obligated service, either voluntarily or involuntarily until discharge, release to inactive duty, or transfer to the Naval Reserve and release to inactive duty, is accomplished. When a member is retained in service beyond expiration of enlistment, or other period of obligated service, entry as to the reason and authority for the retention shall be made on the appropriate page of the member’s service record and signed in accordance with this Manual. Enlisted members may be held beyond expiration of their enlistment or other period of obligated service for any of the following reasons:
******
h. As a result of apprehension, arrest, confinement, investigation, or filing of charges that may result in a trial by court-martial, and continues for all purposes of trial by court-martial and the execution of any sentence thereof. Further, it continues by reason of any of the aforementioned actions that are taken by civil authorities, that may result in trial, because of any offense committed within the criminal jurisdiction of the civil authority concerned, by a member, prior to a legal discharge or separation, although the term of enlistment or obligated service may have expired. In those circumstances, the member may be retained in the service for trial and punishment by civil authorities after the member’s period of obligated service would otherwise have expired.. ..
Before the Navy could turn Taylor over to the Spanish authorities he fled the country. The Spanish authorities issued a fugitive warrant, and the Navy listed him as a deserter in violation of 10 U.S.C. § 885 (1976).
On May 24, 1982 the Richmond, Virginia police, checking Taylor’s record after a traffic violation, discovered that he was sought as a deserter and turned him over to the Navy. He was transferred to the Navy Brig, Naval Station, Philadelphia, to await transfer to Rota and surrender to Spanish custody. On June 9, 1980 Taylor filed suit in the district court, alleging an unconstitutional detention and seeking injunctive and declaratory relief to prevent his return to Spain. The trial court issued a temporary restraining order, which was extended several times. On June 30 an evidentiary hearing was held, and on July 15, 1982 a final judgment was entered granting an injunction against Taylor’s return to Spain and ordering his release. A panel of this court stayed the order for his release. Pri- or to the entry of the stay, however, Taylor posted bail and was released from physical custody by the Navy. A stipulation was subsequently executed by the parties and approved by the district court which provided that Taylor would remain free on bail in a leave without pay status from the Navy until a final ruling by this court.
II.
The United States has three objections to the district court order, one procedural and two substantive.
A. The Procedural Objection
The United States contends that the district court acted improperly when, following the June 30, 1982 hearing on Taylor’s application for a preliminary injunction, the court proceeded to enter a final judgment. Although the trial court has authority to consolidate a hearing on an application for a preliminary injunction with the trial on the merits, Fed.R.Civ.P. 65(a)(2), it did not do so here and did not notify the parties in advance of its intention to render a final judgment. Here, however, the gist of the government’s position is that it had legal authority to extend Taylor’s enlistment involuntarily. It concedes that this issue is purely legal. Thus the trial court’s procedure, while perhaps erroneous, was harmless and in no way prejudiced the government on that issue.
The government also contends, however, that it was prejudiced in presenting its factual claim that Taylor is estopped from challenging the Navy’s authority to extend his enlistment involuntarily. The only disputed issue of fact the government has pointed to is the question of whether Taylor requested a formal discharge. Taylor says that he did, and that the Navy refused to process the request. The Navy denies that he made it. We conclude that this issue is not dispositive on any principle of estoppel.
It is undisputed that Taylor voluntarily refused to extend his enlistment and that the Navy acted unilaterally. The facts as to Taylor’s conduct after the Navy acted unilaterally are undisputed. The Navy asserted its authority to detain him, and he drew pay during the period in which he submitted to that detention. When he lost his appeal, Taylor fled from Spain. These are the only facts relevant to the issue of involuntary extension, and they do not es-top Taylor in this case.
Thus we can only set aside the trial court’s actions in these respects if the United States can show that it was prejudiced thereby in the presentation of a complete case. E.g. Wohlfahrt v. Memorial Medical Center, 658 F.2d 416, 418 (5th Cir.1981). Since the government can demonstrate no prejudice with respect to the development of the material facts, we cannot hold that the trial court erred in deciding the case on the basis of the record made at the June 30, 1982 preliminary injunction hearing, and thus we proceed to the merits.
B. The Substantive Objections
1. The Involuntary Extension of Enlistment
The government contends that Taylor is still an enlistee in the Navy because its unilateral involuntary extension of enlistment was lawful. That contention requires consideration of the several sources of authority on which the government places reliance.
a. Title 10
Under article I, section 8, clause 14 of the Constitution, Congress is given the power to “make Rules for the Government and Regulation of the land and naval Forces.” This power has been exercised in title 10 of the United States Code which contains the now uniform laws applying to the various segments of the armed forces. Title 10 expressly authorizes involuntary extensions of enlistment by the military only once; enlistments in effect or entered into during a time of war continue until six months after such war, unless terminated by the President. 10 U.S.C. §§ 506, 671a (1976). Prior to the enactment of section 506 as part of the Armed Services Act of 1968, the Secretary of the Navy had discretionary authority to extend enlistments in time of war or national emergency for whatever period he considered necessary. Such authority was limited to time of war for the Secretaries of the Army and the Air Force, a limitation which the Department of Defense urged Congress to remove. Instead, in the sole substantive change made by the Armed Services Act, Congress chose to restrict the authority of all the Secretaries by permitting involuntary extensions of enlistments only in periods of war. S.Rep. No. 931, 90th Cong., 1st Sess., reprinted in 1967 U.S.Code Cong. & Ad.News 2635, 2636. In the event of a national emergency the President has limited authority to extend enlistments, but only when Congress is not in session and subject to subsequent Congressional approval. 10 U.S.C. § 671b (1976). No mention is made in title 10 of naval authority to involuntarily extend individual enlistments when a servicemember stationed in a foreign country is subject to that country’s criminal jurisdiction. Thus no statutory authority supports the Navy’s unilateral involuntary extension of Taylor’s enlistment.
b. The Treaty With Spain
The government implicitly acknowledges the lack of express statutory provision for such extensions but contends that the necessary authority is derived from article XVIII of the Agreement in Implementation of the Treaty of Friendship and Cooperation of January 24, 1976 between Spain and the United States, 27 U.S.T. 3095, T.I.A.S. No. 8361, which states in part:
3. The custody of a member of the United States Personnel in Spain, who is legally subject to detention by the military authorities of the United States and over whom Spanish jurisdiction is to be exercised, shall be the responsibility of the United States military authorities, at their request, until the conclusion of all judicial proceedings, at which time the member will be delivered to Spanish authorities at their request for execution of the sentence. Nevertheless, at the conclusion of a trial at which the sentence of the court includes confinement for more than one year, the member shall, if ordered by the judge of the court, be delivered to the Spanish authorities for execution of the sentence even if the verdict of the trial is being appealed. During periods of custody by the United States military authorities, those authorities, within the legal powers given them by the military law of the United States, shall give full consideration to the decisions of the competent Spanish authorities regarding conditions of custody. The United States
military authorities shall guarantee his immediate appearance before the competent Spanish authorities in any proceedings that may require his presence and, in any case, his appearance at the trial.
27 U.S.T. at 3116-17.
Assuming that the agreement is an exercise of Congressional article I, section 8, clause 14 power, the validity of the government’s assertion depends on whether a ser-vicemember such as Taylor whose term of enlistment has expired but who has not received a discharge is “a member of the United States Personnel in Spain [] who is legally subject to detention by the military authorities of the United States.... ” Under the terms of the Agreement, United States Personnel include military personnel that are stationed in or that visit Spain; civilian employees; employees of organizations which accompany the armed forces, such as the American Red Cross and the USO; and the dependents of any individuals in these categories. 27 U.S.T. at 3098-100. According to the government, the phrase “legally subject to detention” has both a descriptive and a substantive meaning. As to nonmilitary personnel, the phrase merely acknowledges that there must be a legal basis for detention independent of the treaty. As to military personnel, however, this phrase supposedly confers the substantive authority to detain servi-cemembers who are subject to Spanish jurisdiction. See Government Brief at 16-22.
Such a double reading runs counter to all normal rules governing the interpretation of contracts. The government attempts to bolster its argument by referring to the intent of the two parties — Spain and the United States — to this Agreement. Thus, the government points to the privileges and protections which the United States obtained for servicemembers subject to foreign jurisdiction in exchange for the obligation to surrender such members at appropriate times during the course of Spanish proceedings. As a result, according to the government, “[i]t is clear that neither the United States nor Spain contemplated that such obligation, once assumed, would be defeated by the mere expiration of the serviceman’s term of enlistment....” Government Brief at 20. But this conclusion, whatever its validity as a statement of the parties’ unarticulated intent, in no way follows from the quid pro quo which is evident in the language of article XVIII. The obligation to surrender a servicemember is not defeated by the expiration of a term of enlistment. The Navy must merely find another legally sufficient basis for detaining the member, or acknowledge its lack of authority and surrender the member to the Spanish authorities. Such a reading does not threaten the obvious intent of the United States to extend the privileges and protections of its custody to those who are subject to its jurisdiction and, unlike the government’s reading, does no violence to the plain meaning of article XVIII. The Navy could and probably should have surrendered Taylor to the Spanish authorities prior to the expiration of his voluntary enlistment. Article XVIII of the treaty justifies naval custody of servicemembers only when there is an independent legal basis for such detention. See Amidon v. Lehman, 677 F.2d 17, 19 (4th Cir.1982).
c. Implicit Navy Rulemaking Authority
We next consider whether the validity of regulations such as BUPERSMAN 3840260(5)(h) which provide for involuntary extensions of enlistment can be derived from the Congressional delegation of authority to the Secretary of the Navy. 10 U.S.C. § 6011 (1982), which had its origins in the Act of July 14, 1862, ch. 164, § 5, 12 Stat. 565, provides that United States Navy Regulations shall be issued by the Secretary of the Navy. There is no statutory definition of Regulations, but the Explanatory Note to 10 U.S.C.A. § 6011 (1959) states that section 6011 covers “permanent regulations of general applicability falling within this statute” as opposed to “the many other regulations issued by the Secretary under specific statutes and under his power to administer the Department.” This definition is further expanded by 32 CFR § 700.1201 (1982) which describes the Regulations, 32 C.F.R. §§ 700.101-1202, as the principal regulatory document covering chain of command and responsibility. The BUPERSMAN article clearly does not fall within this category, and the Navy makes no such claim.
The Regulations, however, provide that Navy officers and officials may promulgate regulations concerning matters over which they have supervision and control. 32 C.F.R. § 700.1202. This is no more than a delegation of the Secretary’s authority — recognized by Congress in 1981 — to administer the Department of the Navy. Such authority does not provide a basis for the involuntary extension of enlistments, because Congress made clear in 10 U.S.C. § 503(b) (1982) that these regulations can only implement the Secretary’s functions, powers and duties under title 10. As we have held in Part II. B. 1. a. of this opinion, title 10 gives the Secretary only limited power to extend enlistments, and the legislative history of this provision indicates an unwillingness to expand this authority. Thus, 32 C.F.R. § 700.1202 cannot be relied upon to establish the validity of the BUPERSMAN article.
d. The Inherent Nature of an Enlistment Contract
The government also argues that involuntary extensions of enlistment are permissible under the caselaw which defines the nature of enlistments. Like marriage, an enlistment is a contract which changes status. In re Grimley, 137 U.S. 147, 152, 11 5. Ct. 54, 55, 34 L.Ed. 636 (1890). The government points out that the breach or expiration of this contract does not result in automatic discharge. Garrett v. United States, 625 F.2d 712, 713 (5th Cir.1980), cert. denied, 450 U.S. 918, 101 S.Ct. 1363, 67 L.Ed.2d 344 (1981). “But [the enlistee] status does not invalidate the contractual obligation of either party or prevent the contract from being upheld, under proper circumstances, by a court of law.” Pfile v. Corcoran, 287 F.Supp. 554, 556-57 (D.Colo. 1968). Thus, for example, while a soldier is barred by the Feres doctrine from recovering damages under the Federal Tort Claims Act for illegal detention, he is not “foreclosed from legal relief [such as habeas corpus] if held in the military after he has met all of the requirements for discharge.” Garrett v. United States, 625 F.2d at 714. See also United States v. Hutchins, 4 M.J. 190, 192 (C.M.A.1978); United States v. Hout, 19 C.M.A. 299, 41 C.M.R. 299 (1970); D. Schlueter, Military Criminal Justice § 4-8(A), at 128 (1982) (servicemember subject to the Code of Military Justice remains in the service after the expiration of his term of enlistment unless he satisfies the requirements for discharge or objects to his detention and the government fails to take appropriate action within a reasonable amount of time).
The government claims that Taylor never requested a discharge or that, at the very least, there is a factual issue as to whether this request was made. Apparently, the government would argue that those cases which require a servicemember to exhaust administrative remedies before resorting to the federal courts, see, e.g., Emma v. Armstrong, 473 F.2d 656 (1st Cir.), cert. denied, 414 U.S. 870, 94 S.Ct. 87, 38 L.Ed.2d 88 (1973), bar judicial review in this case. As noted by the Supreme Court, “[a]pplication of the [exhaustion] doctrine to specific eases requires an understanding of its purposes and of the particular administrative scheme involved.” McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969). Within the context of military regulation, the exhaustion requirement ensures that the military, a highly specialized society with goals separate from those of the general community, Schlesinger v. Councilman, 420 U.S. 738, 757, 95 S.Ct. 1300, 1312, 43 L.Ed.2d 591 (1975); Parisi v. Davidson, 405 U.S. 34, 40, 92 S.Ct. 815, 819, 31 L.Ed.2d 17 (1972), will be able to perform those tasks — such as developing a factual record and applying its expertise — for which it is uniquely qualified. Parisi v. Davidson, 405 U.S. at 37, 92 S.Ct. at 817. This rationale is particularly valid when a case presents issues of fact as to whether a servicemember has acted reasonably in his pursuit of a discharge, Emma v. Armstrong, 473 F.2d at 658, or whether the government has acted reasonably in denying or ignoring the discharge request.
Such factual issues are not presented in this case, however. Whether or not Taylor formally requested a discharge, it is clear that he was’opposed to his involuntary enlistment. It is also clear that the sole reason for his detention was that the Navy considered itself authorized as a matter of law to detain him beyond his enlistment term and that were Taylor to have pressed a formal discharge claim he would have been met at every stage by this legal argument. Since there is no additional factual record required for resolution of this issue and no arcane Navy regulation which must be explicated, there is no justification for judicial deference.
2. Estoppel
Finally, the government argues that even if it lacks statutory, regulatory, or inherent authority to extend enlistments involuntarily, and even if the nature of the enlistment status is in itself an insufficient basis for detaining Taylor, his behavior was such as either to estop him from challenging this detention or to create an implied in fact enlistment contract. Under each theory, Taylor must have intended to act in such a way that the Navy could have reasonably believed that he assented to an extension of his enlistment. See, e.g., United States v. Ruby Co., 588 F.2d 697, 703 (9th Cir.1978) (estoppel), cert. denied, 442 U.S. 917,99 S.Ct. 2838, 61 L.Ed.2d 284 (1979); Restatement (Second) of Contracts § 19 (1981) (conduct as manifestation of assent). To state this requirement is to rebut the government’s argument. The extension of Taylor’s enlistment was involuntary. Although Taylor initially explored re-enlistment, the Navy turned him down, insisting on voluntary extension. Even the government admits that by the time Taylor’s enlistment expired he was clearly opposed to voluntary extension and to his continued detention. Given this opposition, Taylor’s temporary acquiescence in the Navy’s assertion of authority could not be reasonably relied upon as a manifestation of his intent to extend his enlistment.
III.
The Navy’s unilateral and involuntary extension of the term of Taylor’s enlistment was without lawful authority. The Navy is detaining him solely on the basis of that involuntary extension. Taylor is not es-topped from challenging it as unlawful. The judgment appealed from will, therefore, be affirmed.
Before SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER and BECKER, Circuit Judges, and WEBER, District Judge.
. The Government of Spain is not a party, and so far as the record discloses there has been no request to the United States for extradition pursuant to the Treaty on Extradition, May 20, 1970, 22 U.S.T. 737, T.I.A.S. 7136, amended by Supplemental Treaty on Extradition, January 25, 1975, 29 U.S.T. 2283, T.I.A.S. 8938.
. According to the government, under Wilson v. Girard, 354 U.S. 524, 77 S.Ct. 1409, 1 L.Ed.2d 1544 (1957), such power is exercised when, as here, the Senate ratifies a treaty with actual knowledge of the terms of the implementing agreement.
. The government argues that even if article XVIII of the Agreement does not by itself authorize involuntary extensions of enlistment, the final article requires adoption of all measures necessary to implement the Agreement. 27 U.S.T. at 3144. Thus, it supposedly authorizes the adoption of BUPERSMAN article 3840260(5)(h). Government Brief at 22 n. 21. The final article, however, requires only that which is necessary to implement the Agreement and since, as indicated in the text, involuntary extensions of enlistment are not needed to effect the parties’ intent, the BUPERSMAN article cannot derive its authority from this provision.
. 10 U.S.C. § 6011 was amended in 1981 to eliminate the necessity for Presidental approval of Regulations. According to S.Rep. No. 146, 97th Cong., 1st Sess. 25-26, reprinted in 1981 U.S.Code Cong. & Ad.News 1484, 1509, the semantic distinction between Regulations and regulations is preserved.
. In Amidon, the Fourth Circuit observed that under 32 C.F.R. § 700.1201, Navy Regulations cannot be amended by Navy regulations. Thus, the court found the BUPERSMAN article invaliid since it amended 32 C.F.R. § 730.4(e) which lists the various grounds for extending enlistments. As the government points out, the Amidon court erroneously assumed that 32 C.F.R. § 730.4(e) was a Navy Regulation; it was actually promulgated pursuant to the normal 32 C.F.R. § 700.1202 rulemaking power. The government’s position is not aided by this point, however, if there is no authority for the BUPERSMAN article in the first place.
. The Feres doctrine, however, does not bar the recovery of damages for illegal detention occurring after a soldier has been discharged from the service. Valn v. United States Department of Defense, 708 F.2d 116 (3d Cir.1983).
. The exhaustion requirement is akin to but not the same as judicial reluctance to intervene in military court proceedings. The latter is based more on principles of deference to military jurisdiction rather than recognition of superior qualifications, and thus is analogous to federal abstention in cases involving state law. See Parisi v. Davidson, 405 U.S. at 40, 92 S.Ct. at 819; Emma v. Armstrong, 473 F.2d at 659 (Coffin, C.J., dissenting in part).
. At no point in these proceedings has the government suggested that, prior to returning Taylor to Spain and surrendering him to the Spanish authorities, it would afford him an opportunity to present and exhaust his legal contentions in a court martial or elsewhere.
Hon. Gerald J. Weber, United States District Judge for the Western District of Pennsylvania on panel rehearing only.
Question: Decisions that affect life, liberty, or property must be preceded by adequate notice and an opportunity for a fair hearing. Did the agency give proper notice?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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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.
FOUTS v. UNITED STATES.
No. 7068.
Circuit Court of Appeals, Fifth Circuit.
Oct. 25, 1933.
Paul T. Chance, of Augusta, Ga., for appellant.
Chas. L. Redding, U. S. Atty., of Savannah, Ga., Lawton H. Ware, Veterans’ Administration, of Atlanta, Ga., and Randolph Shaw, Sp. Asst, to Atty. Gen.
Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.
SIBLEY, Circuit Judge.
Allie Rae Fouts, as executrix of John Franklin Bell, sued upon a policy of war risk insurance, alleging that the United States, acting through the Veterans’ Bureau, had rejected her claim, and that a disagreement thus arose. A special plea was filed that no appeal had been taken to the Director of the Veterans’ Bureau and no denial of the claim had been made by him or any one acting in his name. On a trial of the plea a verdict was directed sustaining it, and the suit was dismissed. This appeal followed.
The evidence in the bill of exceptions consists mostly of extracts from letters,. no signatures being shown, which are recited to have passed between “the Veterans’ Bureau’’ and “the counsel for plaintiff.” They show that the executrix made claim under the policy, that the Bureau wrote that only a part of the insurance which had been revived under section 305 of the World War Veterans’ Act, 38 USCA, § 516, was of force, and that it went to a relative of the soldier who was named sole legatee in his will rather than to the executrix. No formal judgment is shown. Thereafter “the Veterans’ Bureau” was requested by “Plaintiff’s counsel” to “review the insurance feature of this ease” with additional proofs. The Bureau replied, stating that the request would be acted on by the Insurance Council, and sent a blank to be filled out touching the deceased, which blank was executed and returned. No further action on the claim appears to have been taken before suit was filed. Plaintiff’s counsel was representing both the executrix and the legatee, and he argues that the request for review was made in behalf of the legatee, with the sole purpose of getting allowed to her the face of the policy rather than the lesser amount awarded; and that he understood the letter stating that the executrix took nothing to be a final rejection of her claim. This contention can hardly be sustained, seeing that the record expressly states that plaintiff’s counsel made the request for a review, not that the counsel for the legatee did. But, taking his contention as correct, the executrix none the less sued prematurely. The administration of the War Risk Insurance is committed to the Veterans’ Bureau, and the Director is to decide all questions arising about it. 38 USCA § 426. Suit is permitted only after a disagreement is reached; and, because of dispute as to what would constitute a disagreement, it was enacted July 3, 1930, 46 Stats. 993 (38 USCA § 445), that “the term ‘disagreement’ means a denial of the claim by the director or some one acting in his name on an appeal to the director.” There is nothing in this record to show that any appeal was ever taken to the Director of the Veterans’ Bureau, or that he or any one acting for him had rejected the claim of the executrix. The Director is not mentioned in the pleadings or in the evidence as we have it. Congress could so condition ’ the consent of the United States to be sued as to require a precedent appeal to the Director and adverse action by him. The suit may not be maintained otherwise. United States v. Densmore (C. C. A.) 58 F.(2d) 748; United States v. Collins (C. C. A.) 61 F.(2d) 1002; Griffin v. United States (C. C. A.) 60 F.(2d) 339; United States v. Peters (C. C. A.) 62 F.(2d) 977; Straw v. United States (C. C. A.) 62 F.(2d) 757. It is the general rule that in suing a government administrative remedies must be exhausted before appeal is made to the courts. Error is not made to appear.
Judgment 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:
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sc_decisiondirection
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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 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.
NIX, WARDEN OF THE IOWA STATE PENITENTIARY v. WILLIAMS
No. 82-1651.
Argued January 18, 1984
Decided June 11, 1984
Brent R. Appel, Deputy Attorney General of Iowa, argued the cause for petitioner. With him on the briefs were Thomas J. Miller, Attorney General, and Thomas D. McGrane, Assistant Attorney General.
Kathryn A. Oberly argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Joel M. Gershowitz.
Robert Bartels, by appointment of the Court, 462 U. S. 1129, argued the cause and filed briefs for respondent.
James E. Duggan filed a brief for the National Legal Aid and Defender Association as amicus curiae urging affirmance.
Briefs of amici curiae were filed for the State of Illinois et al. by Neil F. Hartigan, Attorney General of Illinois, Paul P. Biebel, Jr., First Assistant Attorney General, Steven F. Molo, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Charles A. Graddick of Alabama, Norman C. Gorsuch of Alaska, Robert K. Corbin of Arizona, Duane Woodard of Colorado, Charles M. Oberly III of Delaware, Jim Smith of Florida, Michael J. Bowers of Georgia, Tany S. Hong of Hawaii, Jim Jones of Idaho, Linley E. Pearson of Indiana, Robert T. Stephan of Kansas, Steven L. Beshear of Kentucky, William J. Guste, Jr., of Louisiana, James E. Tierney of Maine, Stephen H. Sachs of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, William A. Attain of Mississippi, Michael T. Greely of Montana, Paul L. Douglas of Nebraska, Brian McKay of Nevada, Gregory H. Smith of New Hampshire, Rufus L. Edmisten of North Carolina, Robert Wefald of North Dakota, Michael Turpén of Oklahoma, LeRoy S. Zimmerman of Pennsylvania, Hector Reichard of Puerto Rico, Travis Medlock of South Carolina, Mark V. Meierhenry of South Dakota, William M. Leech, Jr., of Tennessee, David L. Wilkinson of Utah, John J. Easton of Vermont, Gerald L. Battles of Virginia, Kenneth 0. Eikenberry of Washington, Chauncey H. Browning of West Virginia, Bronson C. La Follette of Wisconsin, and Archie G. McClintock of Wyoming; and for the Legal Foundation of America et al. by David Crump, Wayne Schmidt, and James P. Manak.
Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari to consider whether, at respondent Williams’ second murder trial in state court, evidence pertaining to the discovery and condition of the victim’s body was properly admitted on the ground that it would ultimately or inevitably have been discovered even if no violation of any constitutional or statutory provision had taken place.
On December 24, 1968, 10-year-old Pamela Powers disappeared from a YMCA building in Des Moines, Iowa, where she had accompanied her parents to watch an athletic contest. Shortly after she disappeared, Williams was seen leaving the YMCA carrying a large bundle wrapped in a blanket; a 14-year-old boy who had helped Williams open his car door reported that he had seen “two legs in it and they were skinny and white.”
Williams’ car was found the next day 160 miles east of Des Moines in Davenport, Iowa. Later several items of clothing belonging to the child, some of Williams’ clothing, and an army blanket like the one used to wrap the bundle that Williams carried out of the YMCA were found at a rest stop on Interstate 80 near Grinnell, between Des Moines and Davenport. A warrant was issued for Williams’ arrest.
Police surmised that Williams had left Pamela Powers or her body somewhere between Des Moines and the Grinnell rest stop where some of the young girl’s clothing had been found. On December 26, the Iowa Bureau of Criminal Investigation initiated a large-scale search. Two hundred volunteers divided into teams began the search 21 miles east of Grinnell, covering an area several miles to the north and south of Interstate 80. They moved westward from Poweshiek County, in which Grinnell was located, into Jasper County. Searchers were instructed to check all roads, abandoned farm buildings, ditches, culverts, and any other place in which the body of a small child could be hidden.
Meanwhile, Williams surrendered to local police in Davenport, where he was promptly arraigned. Williams contacted a Des Moines attorney who arranged for an attorney in Davenport to meet Williams at the Davenport police station. Des Moines police informed counsel they would pick Williams up in Davenport and return him to Des Moines without questioning him. Two Des Moines detectives then drove to Davenport, took Williams into custody, and proceeded to drive him back to Des Moines.
During the return trip, one of the policemen, Detective Learning, began a conversation with Williams, saying:
“I want to give you something to think about while we’re traveling down the road.... They are predicting several inches of snow for tonight, and I feel that you yourself are the only person that knows where this little girl’s body is... and if you get a snow on top of it you yourself may be unable to find it. And since we will be going right past the area [where the body is] on the way into Des Moines, I feel that we could stop and locate the body, that the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas [E]ve and murdered.... [A]fter a snow storm [we may not be] able to find it at all.”
Learning told Williams he knew the body was in the area of Mitchellville — a town they would be passing on the way to Des Moines. He concluded the conversation by saying: “I do not want you to answer me.... Just think about it....”
Later, as the police car approached Grinnell, Williams asked Learning whether the police had found the young girl’s shoes. After Learning replied that he was unsure, Williams directed the police to a point near a service station where he said he had left the shoes; they were not found. As they continued the drive to Des Moines, Williams asked whether the blanket had been found and then directed the officers to a rest area in Grinnell where he said he had disposed of the blanket; they did not find the blanket. At this point Learning and his party were joined by the officers in charge of the search. As they approached Mitchellville, Williams, without any further conversation, agreed to direct the officers to the child’s body.
The officers directing the search had called off the search at 3 p. m., when they left the Grinnell Police Department to join Learning at the rest area. At that time, one search team near the Jasper County-Polk County line was only two and one-half miles from where Williams soon guided Learning and his party to the body. The child’s body was found next to a culvert in a ditch beside a gravel road in Polk County, about two miles south of Interstate 80, and essentially within the area to be searched.
B
First Trial
In February 1969 Williams was indicted for first-degree murder. Before trial in the Iowa court, his counsel moved to suppress evidence of the body and all related evidence including the condition of the body as shown by the autopsy. The ground for the motion was that such evidence was the “fruit” or product of Williams’ statements made during the automobile ride from Davenport to Des Moines and prompted by Learning’s statements. The motion to suppress was denied.
The jury found Williams guilty of first-degree murder; the judgment of conviction was affirmed by the Iowa Supreme Court. State v. Williams, 182 N. W. 2d 396 (1970). Williams then sought release on habeas corpus in the United States District Court for the Southern District of Iowa. That court concluded that the evidence in question had been wrongly admitted at Williams’ trial, Williams v. Brewer, 375 F. Supp. 170 (1974); a divided panel of the Court of Appeals for the Eighth Circuit agreed. 509 F. 2d 227 (1974).
We granted certiorari, 423 U. S. 1031 (1975), and a divided Court affirmed, holding that Detective Learning had obtained incriminating statements from Williams by what was viewed as interrogation in violation of his right to counsel. Brewer v. Williams, 430 U. S. 387 (1977). This Court’s opinion noted, however, that although Williams’ incriminating statements could not be introduced into evidence at a second trial, evidence of the body’s location and condition “might well be admissible on the theory that the body would have been discovered in any event, even had incriminating statements not been elicited from Williams.” Id., at 407, n. 12.
C
Second Trial
At Williams’ second trial in 1977 in the Iowa court, the prosecution did not offer Williams’ statements into evidence, nor did it seek to show that Williams had directed the police to the child’s body. However, evidence of the condition of her body as it was found, articles and photographs of her clothing, and the results of post mortem medical and chemical tests on the body were admitted. The trial court concluded that the State had proved by a preponderance of the evidence that, if the search had not been suspended and Williams had not led the police to the victim, her body would have been discovered “within a short time” in essentially the same condition as it was actually found. The trial court also ruled that if the police had not located the body, “the search would clearly have been taken up again where it left off, given the extreme circumstances of this case and the body would [have] been found in short order” App. 86 (emphasis added).
In finding that the body would have been discovered in essentially the same condition as it was actually found, the court noted that freezing temperatures had prevailed and tissue deterioration would have been suspended. Id., at 87. The challenged evidence was admitted and the jury again found Williams guilty of first-degree murder; he was sentenced to life in prison.
On appeal, the Supreme Court of Iowa again affirmed. 285 N. W. 2d 248 (1979). That court held that there was in fact a “hypothetical independent source” exception to the exclusionary rule:
“After the defendant has shown unlawful conduct on the part of the police, the State has the burden to show by a preponderance of the evidence that (1) the police did not act in bad faith for the purpose of hastening discovery of the evidence in question, and (2) that the evidence in question would have been discovered by lawful means.” Id., at 260.
As to the first element, the Iowa Supreme Court, having reviewed the relevant cases, stated:
“The issue of the propriety of the police conduct in this case, as noted earlier in this opinion, has caused the closest possible division of views in every appellate court which has considered the question. In light of the legitimate disagreement among individuals well versed in the law of criminal procedure who were given the opportunity for calm deliberation, it cannot be said that the actions of the police were taken in bad faith.” Id., at 260-261.
The Iowa court then reviewed the evidence de novo and concluded that the State had shown by a preponderance of the evidence that, even if Williams had not guided police to the child’s body, it would inevitably have been found by lawful activity of the search party before its condition had materially changed.
In 1980 Williams renewed his attack on the state-court conviction by seeking a writ of habeas corpus in the United States District Court for the Southern District of Iowa. The District Court conducted its own independent review of the evidence and concluded, as had the state courts, that the body would inevitably have been found by the searchers in essentially the same condition it was in when Williams led police to its discovery. The District Court denied Williams’ petition. 528 F. Supp. 664 (1981).
The Court of Appeals for the Eighth Circuit reversed, 700 F. 2d 1164 (1983); an equally divided court denied rehearing en banc. Id., at 1175. That court assumed, without deciding, that there is an inevitable discovery exception to the exclusionary rule and that the Iowa Supreme Court correctly stated that exception to require proof that the police did not act in bad faith and that the evidence would have been discovered absent any constitutional violation. In reversing the District Court’s denial of habeas relief, the Court of Appeals stated:
“We hold that the State has not met the first requirement. It is therefore unnecessary to decide whether the state courts’ finding that the body would have been discovered anyway is fairly supported by the record. It is also unnecessary to decide whether the State must prove the two elements of the exception by clear and convincing evidence, as defendant argues, or by a preponderance of the evidence, as the state courts held.
“The state trial court, in denying the motion to suppress, made no finding one way or the other on the question of bad faith. Its opinion does not even mention the issue and seems to proceed on the assumption — contrary to the rule of law later laid down by the Supreme Court of Iowa — that the State needed to show only that the body would have been discovered in any event. The Iowa Supreme Court did expressly address the issue... and a finding by an appellate court of a state is entitled to the same presumption of correctness that attaches to trial-court findings under 28 U. S. C. § 2254(d).... We conclude, however, that the state Supreme Court’s finding that the police did not act in bad faith is not entitled to the shield of §2254(d)....” Id., at 1169-1170 (footnotes omitted).
We granted the State’s petition for certiorari, 461 U. S. 956 (1983), and we reverse.
a
>
The Iowa Supreme Court correctly stated that the “vast majority” of all courts, both state and federal, recognize an inevitable discovery exception to the exclusionary rule. We are now urged to adopt and apply the so-called ultimate or inevitable discovery exception to the exclusionary rule.
Williams contends that evidence of the body’s location and condition is “fruit of the poisonous tree,” i. e., the “fruit” or product of Detective Learning’s plea to help the child’s parents give her “a Christian burial,” which this Court had already held equated to interrogation. He contends that admitting the challenged evidence violated the Sixth Amendment whether it would have been inevitably discovered or not. Williams also contends that, if the inevitable discovery doctrine is constitutionally permissible, it must include a threshold showing of police good faith.
B
The doctrine requiring courts to suppress evidence as the tainted “fruit” of unlawful governmental conduct had its genesis in Silverthome Lumber Co. v. United States, 251 U. S. 385 (1920); there, the Court held that the exclusionary rule applies not only to the illegally obtained evidence itself, but also to other incriminating evidence derived from the primary evidence. The holding of Silverthome was carefully limited, however, for the Court emphasized that such information does not automatically become “sacred and inaccessible.” Id., at 392.
“If knowledge of [such facts] is gained from an independent source, they may be proved like any others....” Ibid, (emphasis added).
Wong Sun v. United States, 371 U. S. 471 (1963), extended the exclusionary rule to evidence that was the indirect product or “fruit” of unlawful police conduct, but there again the Court emphasized that evidence that has been illegally obtained need not always be suppressed, stating:
“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Id., at 487-488 (emphasis added) (quoting J. Maguire, Evidence of Guilt 221 (1959)).
The Court thus pointedly negated the kind of good-faith requirement advanced by the Court of Appeals in reversing the District Court.
Although Silverthorne and Wong Sun involved violations of the Fourth Amendment, the “fruit of the poisonous tree” doctrine has not been limited to cases in which there has been a Fourth Amendment violation. The Court has applied the doctrine where the violations were of the Sixth Amendment, see United States v. Wade, 388 U. S. 218 (1967), as well as of the Fifth Amendment.
The core rationale consistently advanced by this Court for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct has been that this admittedly drastic and socially costly course is needed to deter police from violations of constitutional and statutory protections. This Court has accepted the argument that the way to ensure such protections is to exclude evidence seized as a result of such violations notwithstanding the high social cost of letting persons obviously guilty go unpunished for their crimes. On this rationale, the prosecution is not to be put in a better position than it would have been in if no illegality had transpired.
By contrast, the derivative evidence analysis ensures that the prosecution is not put in a worse position simply because of some earlier police error or misconduct. The independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation. That doctrine, although closely related to the inevitable discovery doctrine, does not apply here; Williams’ statements to Learning indeed led police to the child’s body, but that is not the whole story. The independent source doctrine teaches us that the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. See Murphy v. Waterfront Comm’n of New York Harbor, 378 U. S. 52, 79 (1964); Kastigar v. United States, 406 U. S. 441, 457, 458-459 (1972). When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation. There is a functional similarity between these two doctrines in that exclusion of evidence that would inevitably have been discovered would also put the government in a worse position, because the police would have obtained that evidence if no misconduct had taken place. Thus, while the independent source exception would not justify admission of evidence in this case, its rationale is wholly consistent with and justifies our adoption of the ultimate or inevitable discovery exception to the exclusionary rule.
It is clear that the cases implementing the exclusionary rule “begin with the premise that the challenged evidence is in some sense the product of illegal governmental activity.” United States v. Crews, 445 U. S. 463, 471 (1980) (emphasis added). Of course, this does not end the inquiry. If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means — here the volunteers’ search— then the deterrence rationale has so little basis that the evidence should be received. Anything less would reject logic, experience, and common sense.
The requirement that the prosecution must prove the absence of bad faith, imposed here by the Court of Appeals, would place courts in the position of withholding from juries relevant and undoubted truth that would have been available to police absent any unlawful police activity. Of course, that view would put the police in a worse position than they would have been in if no unlawful conduct had transpired. And, of equal importance, it wholly fails to take into account the enormous societal cost of excluding truth in the search for truth in the administration of justice. Nothing in this Court’s prior holdings supports any such formalistic, pointless, and punitive approach.
The Court of Appeals concluded, without analysis, that if an absence-of-bad-faith requirement were not imposed, “the temptation to risk deliberate violations of the Sixth Amendment would be too great, and the deterrent effect of the Exclusionary Rule reduced too far.” 700 F. 2d, at 1169, n. 5. We reject that view. A police officer who is faced with the opportunity to obtain evidence illegally will rarely, if ever, be in a position to calculate whether the evidence sought would inevitably be discovered. Cf. United States v. Ceccolini, 435 U. S. 268, 283 (1978):
“[T]he concept of effective deterrence assumes that the police officer consciously realizes the probable consequences of a presumably impermissible course of conduct” (opinion concurring in judgment).
On the other hand, when an officer is aware that the evidence will inevitably be discovered, he will try to avoid engaging in any questionable practice. In that situation, there will be little to gain from taking any dubious “shortcuts” to obtain the evidence. Significant disincentives to obtaining evidence illegally — including the possibility of departmental discipline and civil liability — also lessen the likelihood that the ultimate or inevitable discovery exception will promote police misconduct. See Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388, 397 (1971). In these circumstances, the societal costs of the exclusionary rule far outweigh any possible benefits to deterrence that a good-faith requirement might produce.
Williams contends that because he did not waive his right to the assistance of counsel, the Court may not balance competing values in deciding whether the challenged evidence was properly admitted. He argues that, unlike the exclusionary rule in the Fourth Amendment context, the essential purpose of which is to deter police misconduct, the Sixth Amendment exclusionary rule is designed to protect the right to a fair trial and the integrity of the factfinding process. Williams contends that, when those interests are at stake, the societal costs of excluding evidence obtained from responses presumed involuntary are irrelevant in determining whether such evidence should be excluded. We disagree.
Exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial. The Sixth Amendment right to counsel protects against unfairness by preserving the adversary process in which the reliability of proffered evidence may be tested in cross-examination. See United States v. Ash, 413 U. S. 300, 314 (1973); Schneckloth v. Bustamonte, 412 U. S. 218, 241 (1973). Here, however, Detective Learning’s conduct did nothing to impugn the reliability of the evidence in question — the body of the child and its condition as it was found, articles of clothing found on the body, and the autopsy. No one would seriously contend that the presence of counsel in the police car when Learning appealed to Williams’ decent human instincts would have had any bearing on the reliability of the body as evidence. Suppression, in these circumstances, would do nothing whatever to promote the integrity of the trial process, but would inflict a wholly unacceptable burden on the administration of criminal justice.
Nor would suppression ensure fairness on the theory that it tends to safeguard the adversary system of justice. To assure the fairness of trial proceedings, this Court has held that assistance of counsel must be available at pretrial confrontations where “the subsequent trial [cannot] cure a[n otherwise] one-sided confrontation between prosecuting authorities and the uncounseled defendant.” United States v. Ash, supra, at 315. Fairness can be assured by placing the State and the accused in the same positions they would have been in had the impermissible conduct not taken place. However, if the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings. In that situation, the State has gained no advantage at trial and the defendant has suffered no prejudice. Indeed, suppression of the evidence would operate to undermine the adversary system by putting the State in a worse position than it would have occupied without any police misconduct. Williams’ argument that inevitable discovery constitutes impermissible balancing of values is without merit.
More than a half century ago, Judge, later Justice, Cardozo made his seminal observation that under the exclusionary rule “[t]he criminal is to go free because the constable has blundered.” People v. Defore, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926). Prophetically, he went on to consider “how far-reaching in its effect upon society” the exclusionary rule would be when
“[t]he pettiest peace officer would have it in his power through overzeal or indiscretion to confer immunity upon an offender for crimes the most flagitious.” Id., at 23, 150 N. E., at 588.
Some day, Cardozo speculated, some court might press the exclusionary rule to the outer limits of its logic — or beyond— and suppress evidence relating to the “body of a murdered” victim because of the means by which it was found. Id., at 23-24, 150 N. E., at 588. Cardozo’s prophecy was fulfilled in Killough v. United States, 114 U. S. App. D. C. 305, 309, 315 F. 2d 241, 245 (1962) (en banc). But when, as here, the evidence in question would inevitably have been discovered without reference to the police error or misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible.
C
The Court of Appeals did not find it necessary to consider whether the record fairly supported the finding that the volunteer search party would ultimately or inevitably have discovered the victim’s body. However, three courts independently reviewing the evidence have found that the body of the child inevitably would have been found by the searchers. Williams challenges these findings, asserting that the record contains only the “post hoc rationalization” that the search efforts would have proceeded two and one-half miles into Polk County where Williams had led police to the body.
When that challenge was made at the suppression hearing preceding Williams’ second trial, the prosecution offered the testimony of Agent Ruxlow of the Iowa Bureau of Criminal Investigation. Ruxlow had organized and directed some 200 volunteers who were searching for the child’s body. Tr. of Hearings on Motion to Suppress in State v. Williams, No. CR 55805, p. 34 (May 31, 1977). The searchers were instructed “to check all the roads, the ditches, any culverts.... If they came upon any abandoned farm buildings, they were instructed to go onto the property and search those abandoned farm buildings or any other places where a small child could be secreted.” Id., at 35. Ruxlow testified that he marked off highway maps of Poweshiek and Jasper Counties in grid fashion, divided the volunteers into teams of four to six persons, and assigned each team to search specific grid areas. Id., at 34. Ruxlow also testified that, if the search had not been suspended because of Williams’ promised cooperation, it would have continued into Polk County, using the same grid system. Id., at 36, 39-40. Although he had previously marked off into grids only the highway maps of Poweshiek and Jasper Counties, Ruxlow had obtained a map of Polk County, which he said he would have marked off in the same manner had it been necessary for the search to continue. Id., at 39.
The search had commenced at approximately 10 a. m. and moved westward through Poweshiek County into Jasper County. At approximately 3 p. m., after Williams had volunteered to cooperate with the police, Detective Learning, who was in the police car with Williams, sent word to Ruxlow and the other Special Agent directing the search to meet him at the Grinnell truck stop and the search was suspended at that time. Id., at 51-52. Ruxlow also stated that he was “under the impression that there was a possibility” that Williams would lead them to the child’s body at that time. Id., at 61. The search was not resumed once it was learned that Williams had led the police to the body, id., at 57, which was found two and one-half miles from where the search had stopped in what would have been the easternmost grid to be searched in Polk County, id., at 39. There was testimony that it would have taken an additional three to five hours to discover the body if the search had continued, id., at 41; the body was found near a culvert, one of the kinds of places the teams had been specifically directed to search.
On this record it is clear that the search parties were approaching the actual location of the body, and we are satisfied, along with three courts earlier, that the volunteer search teams would have resumed the search had Williams not earlier led the police to the body and the body inevitably would have been found. The evidence asserted by Williams as newly discovered, i. e., certain photographs of the body and deposition testimony of Agent Ruxlow made in connection with the federal habeas proceeding, does not demonstrate that the material facts were inadequately developed in the suppression hearing in state court or that Williams was denied a full, fair, and adequate opportunity to present all relevant facts at the suppression hearing.
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.
Iowa law provides for de novo appellate review of factual as well as legal determinations in cases raising constitutional challenges. See, e. g., Armento v. Baughman, 290 N. W. 2d 11, 15 (Iowa 1980); State v. Ege, 274 N. W. 2d 350, 352 (Iowa 1979).
Every Federal Court of Appeals having jurisdiction over criminal matters, including the Eighth Circuit in a case decided after the instant case, has endorsed the inevitable discovery doctrine. See Wayne v. United States, 115 U. S. App. D. C. 234, 238, 318 F. 2d 205, 209, cert. denied, 375 U. S. 860 (1963); United States v. Bienvenue, 632 F. 2d 910, 914 (CA1 1980); United States v. Fisher, 700 F. 2d 780, 784 (CA2 1983); Government of Virgin Islands v. Gereau, 502 F. 2d 914, 927-928 (CA3 1974), cert. denied, 420 U. S. 909 (1975); United States v. Seohnlein, 423 F. 2d 1051, 1053 (CA4), cert. denied, 399 U. S. 913 (1970); United States v. Brookins, 614 F. 2d 1037, 1042, 1044 (CA5 1980); Papp v. Jago, 656 F. 2d 221, 222 (CA6 1981); United States ex rel. Owens v. Twomey, 508 F. 2d 858, 865-866 (CA7 1974); United States v. Apker, 705 F. 2d 293, 306-307 (CA8 1983); United States v. Schmidt, 573 F. 2d 1057, 1065-1066, n. 9 (CA9), cert. denied, 439 U. S. 881 (1978); United States v. Romero, 692 F. 2d 699, 704 (CA10 1982); United States v. Roper, 681 F. 2d 1354, 1358 (CA11 1982).
In Murphy v. Waterfront Comm’n of New York Harbor, 378 U. S. 52, 79 (1964), the Court held that “a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him.” The Court added, however, that “[o]nce a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.” Id., at 79, n. 18; see id., at 103 (White, J., concurring). Application of the independent source doctrine in the Fifth Amendment context was reaffirmed in Kastigar v. United States, 406 U. S. 441, 460-461 (1972).
The ultimate or inevitable discovery exception to the exclusionary rule is closely related in purpose to the harmless-error rule of Chapman v. California, 386 U. S. 18, 22 (1967). The harmless-constitutional-error rule “serve[s] a very useful purpose insofar as [it] block[s] setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.” The purpose of the inevitable discovery rule is to block setting aside convictions that would have been obtained without police misconduct.
As to the quantum of proof, we have already established some relevant guidelines. In United States v. Matlock, 415 U. S. 164, 178, n. 14 (1974) (emphasis added), we stated that “the controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence.” In Lego v. Twomey, 404 U. S. 477, 488 (1972), we observed “from our experience [that] no substantial evidence has accumulated that federal rights have suffered from determining admissibility by a preponderance of the evidence” and held that the prosecution must prove by a preponderance of the evidence that a confession sought to be used at trial was voluntary. We are unwilling to impose added burdens on the already difficult task of proving guilt in criminal cases by enlarging the barrier to placing evidence of unquestioned truth before juries.
Williams argues that the preponderance-of-the-evidence standard used by the Iowa courts is inconsistent with United States v. Wade, 388 U. S. 218 (1967). In requiring clear and convincing evidence of an independent source for an in-court identification, the Court gave weight to the effect an uncounseled pretrial identification has in “crystallizing] the witnesses’ identification of the defendant for future reference.” Id., at 240. The Court noted as well that possible unfairness at the lineup “may
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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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.
Jerome C. HARTZLER, Plaintiff-Appellee, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellant.
No. 17955.
United States Court of Appeals, Seventh Circuit.
Oct. 19, 1970.
Rehearing Denied Nov. 9, 1970.
. Russell J. Wildman, Peru, Ind., John H. Gobel, Gen. Counsel, Chicago, 111., for defendant-appellant.
David B. Keller, Edward L. Murphy, Fort Wayne, Ind., for plaintiff-appellee; Livingston, Dildine, Haynie & Yoder, Fort Wayne, Ind., of counsel.
Before HASTINGS, Senior Circuit Judge, and KILEY and KERNER, Circuit Judges. •
KERNER, Circuit Judge.
Defendant-appellant, Chesapeake and Ohio Railway Company (Railway), appeals from a jury award of $75,000 in favor of plaintiff-appellee, Jerome C. Hartzler, for injuries incurred when plaintiff’s car collided with defendant’s train which was stopped or moving slowly across an oblique public highway intersection. Jurisdiction is based on diversity of citizenship. We affirm the jury’s finding for plaintiff and the award.
The parties, pursuant to a pre-trial order, stipulated that on the night of October 26, 1966, at approximately 9:15 o’clock, the plaintiff’s automobile collided with the sixtieth car of defendant’s train, a black coal car, where County Road 800E crossed a single set of defendant’s railroad tracks. It was further stipulated that at this particular railroad crossing defendant had erected a single highway cross-arm sign approximately eleven feet high, but that
[s] aid crossing sign was not visible to the traveling public, including plaintiff, approaching said crossing from the north when a train was standing on or passing over said crossing, [and] [t] hat there were no other signs, signals or warning devices installed, erected or painted on or near the intersection of said highway and defendant’s tracks other than the aforesaid cross-arm sign.
The parties also stipulated
[t]hat at said time and place, there were no lights at or near the crossing and plaintiff’s was the only vehicle at or near the crossing and [t]hat at the time of said collision there were no disc warning signs on either the north or south side of the crossing and there had been no such signs for at least two years prior to the accident, although such a sign did exist within eight years prior to said two-year period.
Plaintiff suffered retrograde amnesia, resulting from the accident, and was not able to testify to any facts that occurred during the period several days prior to the accident until several days after the accident. In the absence of eyewitnesses, much of plaintiff’s case on liability was developed by two experts. Dr. J. Stannard Baker, a traffic engineer and Director of Research and Development at the Traffic Institute of Northwestern University, testified that as one approaches the crossing from the north “there is a definite slope downward” and this decreases the ability to stop upon application of the brakes. Dr. Baker further testified that based upon an examination of the scene, skid marks, photographs and his evaluation of damages to the coal ear and automobile, he was of the opinion that Hartzler was traveling between 42 and 54 miles per hour at the time he applied the brakes (the speed limit on 800E was 65 mph). Dr. Baker then stated at the speed of 42 miles per hour, approaching a railroad track intersecting the highway at the the angle defendant’s track intersected and having a grade similar to highway 800E, the point at which the driver could no longer avoid a collision would be 182 feet. This point of no escape, Dr. Baker stated, would increase to 275 feet if the driver were going 54 miles per hour.
The second expert testimony was given by John W. Mihelich, a professor of physics at Notre Dame. Professor Mihelich testified that in his opinion, a dark coal hopper, whether stopped or moving slowly, would be invisible at 150 feet.
My opinion is that with normal headlights, with reflection from the black-top, reflection off the coal train at an angle with respect to the highway, with it reflecting back from the train into the eye, with there being no sharp features to outline the train, such as, say, perhaps a light background, that in all likelihood, the train would be below the level of perception for a distance fairly close beyond the range of the headlights striking the pavement, and I would venture to guess that at 150 feet that train would be invisible, if it’s truly black with no background.
Both experts’ opinions indicate that plaintiff did not see the train until it was too late to avoid a collision.
Defendant-appellant Railway contends that since it violated no statutory duty towards plaintiff, it was error to allow the jury to determine liability based on the common law rules of negligence, because under Indiana law common law negligence does not apply to a railroad where it occupies a crossing and there is a collision. While we agree defendant violated no statutory duty, we disagree that common law negligence rules are inapplicable.
Since our jurisdiction is based on diversity of citizenship, we apply the law of Indiana as interpreted by its highest court. The latest pronouncement of the Indiana Supreme Court concerning the applicability of common law negligence rules to collisions at railroad cx'ossing was made in the recent case of Central Indiana Ry. Co. v. Anderson Banking Co., Ind., 247 N.E.2d 208 (1969). The court in Central Indiana recognized that pxdor Indiana law had adopted the minority view, that a railroad had no duty under any circumstances to warn the public of the presence of a train on a crossing. The court then stated the majority rule:
The doctrine prevailing in most jurisdictions, as the later cases show, is that where there is evidence that the particular crossing, either because of its more or less permanent features or because of circumstances existing and affecting its use at the given time, was. more than ordinarily hazardous, a question for the jury or the trier of facts is usually presented as to whether or not reasonable care on the part of the railroad required it to provide a flagman to warn of approaching trains.
On the other hand, in the absence of evidence of more than ordinary hazard attending public use of the crossing, there is, according to the doctrine generally laid down, no basis for the contention that the railroad company was under any duty to provide a flagman,
and stated that “Indiana has within the last few years showed a tendency to move away from the strict adherence to the minority view and toward the modern view,” Id. at 210, citing Budkiewicz v. Elgin, Joliet and Eastern Ry. Co., 238 Ind. 535, 150 N.E.2d 897 (1958), and a concurring-dissenting opinion in Tyler v. Chicago-Eastern Illinois Railway, 241 Ind. 463, 490, 173 N.E.2d 314, 326 (1961). The Indiana Supreme Court, taking cognizance of the increase and development in automobile travel, clearly indicated its preference for the majority position:
In light of the foregoing discussion, the better rule to adopt is the “Majority Rule” which allows liability to be imposed absent a statutory requirement if the facts of the particular case are such as to give the railroad the duty to warn the traveling public of the extra-hazardous nature of the crossing. The question of the presence of an extra-hazardous crossing could be left to the jury’s determination.
Central Indiana Ry. Co. v. Anderson Banking Co., 247 N.E.2d at 211.
The pronouncements in Central Indiana, while dicta and not essential to the disposition of that case, nevertheless indicate the highest court of the state’s interpretation of the law in this area, and we, sitting as another court of that state, follow that interpretation as the substantive law of Indiana. See e.g., Allstate Insurance Co. v. Charneski, 286 F.2d 238, 244 (7th Cir. 1960).
In the application of a state statute, the federal courts are, of course, bound by the construction made by the courts of the state. Senn v. Tile Layers Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229. And the obligation to accept local interpretation extends not merely to definitive decisions, but to considered dicta as well. Hawks v. Hamill, 288 U.S. 52, 53 S.Ct. 240, 77 L.Ed. 610; Badger v. Hoidale, 8 Cir., 88 F.2d 208, 109 A.L.R. 798. Indeed, under the implications of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, and West v. American Telephone and Telegraph Co., 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139, where direct expression by an authorized state tribunal is lacking, it is the duty of the federal court, in dealing with matters of either common law or statute, to have regard for any persuasive data that is available, such as compelling inferences or logical implications from other related adjudications and considered pronouncements. The responsibility of the federal courts, in matters of local law, is not to formulate the legal mind of the state, but merely to ascertain and apply it. Any convincing manifestation of local law, having a clear root in judicial conscience and responsibility, whether resting in direct expression or obvious implication and inference, should accordingly be given appropriate heed.
Yoder v. Nu-Enamel, 117 F.2d 488, 489 (8th Cir. 1941).
Reviewing the facts of the instant case, we hold that the judge did not err in allowing the jury to decide whether the railroad crossing was extra-hazardous. There was sufficient evidence to consider whether the oblique crossing was extra-hazardous because of the absence of an advance warning sign or other signals and lights at the crossing and the fact that the train blocked a sloping crossing in the black of night. As the Indiana Supreme Court stated in Central Indiana Ry.:
In the present case there was evidence introduced that the railroad crossing was at the bottom of a dip in the highway with the road sloping upwards to the south and north of the tracks, that the crossing was not illuminated in any way and that two buildings obstructed the view of the crossing. This evidence is sufficient to allow the jury to determine that the crossing was dangerous to an extra-hazardous extent and to infer this knowledge to the railroad. Appelgate v. Chicago & N.W. Ry. Co. (1948), 334 Ill.App. 141, 78 N.E.2d 793; Chesapeake & Ohio R. Co. v. Elk Refining Co. (1950, C.A. 4th W.Va.), 186 F.2d 301; Tanzi v. New York Cent. R. Co. (1951), 155 Ohio St. 149, 98 N.E.2d 39, 24 A.L.R.2d 1151. 247 N.E.2d at 211.
In addition, the verdict was not based on impermissible speculation and inferences, as the appellant contends. The finding of negligence has ample support in the record concerning the extra-hazardous nature of the crossing and the testimony of the plaintiff’s two expert witnesses, who believed plaintiff did not see the train in time to avoid the accident under the existent conditions. Although there were no eyewitnesses to the collision, negligence can be proved by circumstantial evidence. See e.g., Great Atlantic & Pacific Tea Co. v. McNew, 99 Ind.App. 229, 189 N.E. 641 (1934), and we find our decisions in Foster v. N. Y. C. System, 402 F.2d 312 (7th Cir. 1968), and Iwaniuk, Admr. v. Bethlehem Steel Corp,, 402 F.2d 309 (7th Cir. 1968), holding jury speculation improper, distinguishable because they were based on non-analogous fact situations which did not have the benefit of expert testimony.
Defendant Railway also alleges as error the admission of the expert testimony of Dr. Baker and Professor Mihelich as opinion evidence which invaded the province of the jury. Under either Indiana law, see e.g., Lengyel v. Hecht, Ind.App., 242 N.E.2d 135, 137-39 (1969), or federal law, see e.g., Salem v. U. S. Lines, 370 U.S. 31, 35, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962), the determination of the admissibility of expert testimony is left to the broad discretion of the trial judge. We find that the testimony of the expert witnesses did not invade the province of the jury, and the trial judge did not abuse his discretion by receiving the expert testimony into evidence.
Appellant’s last allegation of error is directed at several of its instructions which were refused by the trial judge. Two instructions refused by the court would have withdrawn the issue of defendant’s statutory negligence from the jury’s consideration. Although these two instructions were refused, the trial judge did give an instruction to the jury which stated: “I instruct you that there is no evidence upon which you may find that the defendant violated a statutory duty which it owed to plaintiff.” Consequently, it was not error to refuse to give the two instructions dealing with statutory negligence since the subject matter of the refused instruction was covered by instructions which were given. See e.g., Central Indiana Ry. Co. v. Wishard, 186 Ind. 262, 114 N.E. 970, 973 (1917); see also Alford v. New York Central R. Co., 339 F.2d 1019, 1021 (7th Cir. 1964).
The other set of refused instructions would have informed the jury to disregard evidence concerning the absence of signs, signals and other warning devices at the crossing in determining whether the defendant was negligent. As we have stated, pursuant to the Central Indiana Ry. case, the question of the presence of signs, signals and other warning devices is relevant along with other factors, in a jury’s determination of whether a crossing is ultra-hazardous.
For the foregoing reasons, the decision of the district court is affirmed.
Affirmed.
. The railroad sought to have the State Supreme Court accept transfer of the case from the appellate court. The court denied transfer, even though it disagreed with the appellate court that the question of negligence should be withdrawn from the jury, since the appellate court had affirmed the trial court's finding in favor of the plaintiff-appellee.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
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songer_adminrev
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O
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
BOWLES v. UNITED STATES.
No. 2999.
Circuit Court of Appeals, Fourth Circuit.
Oct. 21, 1930.
NORTHCOTT, Circuit Judge, dissenting.
John Philip Hill, of Baltimore, Md., for appellant.
A. W. W. Woodcock, U. S. Ally., and William C. Baxter, Asst. U. S. Atty., both of Baltimore, Md., for appellee.
Before PARKER and NORTHCOTT, Circuit Judges, and WATKINS, District Judge.
PARKER, Circuit Judge.
This is an appeal from an order adjudging one Norman S. Bowles in contempt of court and sentencing him to serve a term of seventy-five days in jail as punishment therefor. The charges against him are that he disobeyed an order directing him to appear for hearing that his conduct in a ease heard before the court might be investigated, and that he practiced a deception upon the court, and was thereby allowed to appear at its bar, by representing that he was a practicing attorney of the District of Columbia, whereas the fact was that he had been disbarred. The following is a statement of the facts with regard to Bowles’ conduct in court and his refusal to appear pursuant to the court’s order contained in a statement filed by the District-Judge as a part of the record, viz.:
“On the morning of November 26th, 1929, Norman S. Bowles appeared in the United States District Court at Baltimore, and representing himself as an attorney of the District of Columbia Bar, answered the call of the criminal docket on behalf of one Thomas Knott, informed against for violation of the National Prohibition Act [27 USCA], Bowles plead Knott ‘guilty’ and Knott was fined $200.00 and costs.
“Following the disposition of this case, Bowles was interrogated by the Court, while still in session, in the course of which he made certain statements tending to show that he had been paid by a third party to defend the said Knott and to misrepresent the said Knott’s connection with the offense with which he was charged, to the end that both the said third party and the said Knott might escape punishment for the offense. Because of these statements, the Court thereupon stated to Bowles that his conduct prima facie required further ' investigation, and asked Bowles for his full name and address, which were given as Norman S. Bowles, 1117 Vermont Avenue, Washington, D. C., and Bowles stated that he was an attorney at law.practising in the city of Washington. Throughout the proceedings before this Court and the questioning of Bowles after said proceedings as aforesaid, Bowles made no denial, either express or implied, that he was an attorney of the District of Columbia as he had originally represented himself to be.
“Before the commencement of the afternoon session of the Court on the same day, namely, November 26th, Bowles came to the Court’s chambers, asked if the Court wanted to see him further, whereupon the Court ordered him to appear before the Court at 4:00 P. M. that day for a further hearing. He failed to appear.
“On the following day, namely, November 27th, the Court learned, upon inquiry from the Bar Association of the District of Columbia, that Bowles had been disbarred by the Supreme Court of the District of Columbia on July 2nd, 1921, and expelled as. a member of the Bar of the Supreme Court of the District of Columbia, and that on June 14th, 1929 he had been cited in contempt of that Court for having held himself out as an attorney at law in Washington, D. C., after having been disbarred as aforesaid, that he was adjudicated in contempt and ordered to pay a fine of $100.00, from which he appealed and was released on bond pending the appeal, which is still undecided. This Court was further informed that the disbarment was the result of Bowles’ having been convicted in the Supreme Court of the District, on June 24th, 1921, of violation of section 37 of the Penal Code [18 USCA § 88], sentenced to pay a fine of $5000.00 and to the Atlanta penitentiary for a period of two years.
“The Court obtained certified copies from the Clerk of the Supreme Court of the District of Columbia, of the docket entries showing the above facts to be true.
“As a result of the aforegoing information, the Court on November 27th, 1929, ordered Bowles to appear before the Court on the following Monday, .December 2nd, at '10:30 A. M. and to show cause, if any be had, why he failed to obey the original order of Court above referred to, to appear for further hearing at 4:00 P. M. on November 26th. This order was served upon Bowles by registered mail letter and was received' by his agent on November 29th, as evidenced by Post Office registered mail return receipt. Upon Bowles’ failure to appear oh Monday, December 2nd, as ordered, the Court on December 3rd, 1929, issued a bench warrant for Ms arrest and production before the Court to answer for being in contempt of Court in having practiced upon the Court the aforegoing fraud and deception respecting his status as an attorney, all having been done while actually in the presence of the Court, and for having disobeyed two previous orders of the Court as above set forth.”
The bench warrant referred to by the judge was issued pursuant to an order entered on December 3d, in the absence of respondent, adjudging him in contempt. That order is as follows :
“Whereas on the twenty-seventh day of November, 1929, Norman S. Bowles, never a member of the Bar of this Court, appeared before tMs Court and represented himself as an attorney at law residing in Washington, D. C., and as such attorney being presumably in good standing there; and
“Whereas as a result of the- aforegoing the said Norman S. Bowles was permitted to represent a client, to-wit, Thomas Knott, informed against for violation of the National Prohibition Act and who, while so represented by the said Norman S. Bowles, plead guilty and was fined Two Hundred Dollars ($200.00) and costs; and
“Whereas following the disposition of the case of the said Thomas Knott as aforesaid, the said Norman S. Bowles was interrogated by the Court, in the course of which he made statements to the Court tending to show that he had been bribed by a third party to defend the said Knott and to misrepresent the said Knott’s connection with the offense with which he was charged, to the end that both the said third party and the said Knott might escape punishment; and
“Whereas certain other statements made by the said Norman S.. Bowles to the Court in the course of the aforesaid interrogation were in flat contradiction of statements he had made in open Court; and
“Whereas the Court has since ascertained that on July 2nd, 1921, the said Norman S. Bowles was disbarred and expelled by the Supreme Court of the District of Columbia as a member of the Bar of that Court following his conviction for a felony for which he was fined Five Thousand Dollars ($5,000.00) and sentenced to the penitentiary for two years; and that on June 14, 1929, he was adjudicated in contempt of the said Court for having held himself out as an attorney at law in Washington, D. C. after having been disbarred as aforesaid, and for such contempt was fined One Hundred Dollars, ($100.00) and that an appeal from the order imposing said line is now pending; and
“Whereas because of the aforegoing facts the Court ordered the said Norman S. Bowles to reappear and to explain his conduct before the Court as aforesaid, but he has failed to comply with said order;
“Now, therefore, by reason of the deception which the said Norman S. Bowles practiced upon this Court, and by reason of his other wrongful conduct as aforesaid, the said Norman S. Bowles is declared to be in contempt of this Court and it is ordered that a bench warrant issue and he be apprehended by the Marshal, and brought forthwith before this Court to answer for said contempt.”
Bowles was arrested in the District of Columbia under the bench warrant and resisted removal into Maryland. He was ordered removed by the Supreme Court of the District and appealed to the Court of Appeals. While the appeal was ponding, he voluntarily went into Maryland, where he was arrested and carried before the District Judge. Here he denied that he had ever seen the charges against him, or any copy of the order adjudging him in contempt, and asked that he be granted a continuance to prepare his defense. This the court denied, and, thereupon,-entered an order which, after reciting that an order had been entered on December 3d adjudging him in contempt, and that the court had granted him a hearing and had found that his conduct as Set forth in the original order was without justification, concluded by sentencing him to serve seventy-five days in jail.
There is nothing in the record to show that any copy of the charges was ever served upon Bowles or seen by him prior to the time that he was taken before the judge, or that he had over before seen or heard the contents of the order of December 3d. There was a statement by the district attorney that a copy of the order was before the United States Commissioner in the District of Columbia, but this was denied by Bowles; and the record of the court of the District was not produced. The judge was evidently of opinion that the case was one which could be dealt with summarily; for in denying the continuance he said: “This being a matter of direct contempt, and punishable immediately, there seems to be no reason why the defendant should be given any further opportunity.” And this was evidently the theory, also, upon which the order of December 3d was entered; for upon no other theory could an order adjudging respondent in contempt without either the service of process or his presence in court be sustained. See In re Terry, 128 U. S. 289, 9 S. Ct. 77, 32 L. Ed. 405,
But we do not think that either the failure of Bowles to appear pursuant to order or the false representation with which he was charged were contempts committed under the eye or within the view of the court which could be summarily punished. As pointed out by Mr. Justice Harlan in Matter of Savin, Petitioner, 131 U. S. 267, 277, 9 S. Ct. 699, 702, 33 L. Ed. 150, the mode of procedure is not the same in every case of contempt committed in the presence of the court. When the contempt is committed directly under the eye or within the view of the court, it may proceed “upon its own knowledge of the facts, and punish the offender, without further proof and without issue or trial in any form.” Whore, however, the judge cannot have personal knowledge of all the facts constituting the contempt and must bo informed thereof by confession of the party, or by the testimony of others, the proper practice is by rule, or other process, to require the offender to appear and show cause why he should not be punished. And in such case, due process requires that he be advised of the charges and have reasonable opportunity to meet them by way of defense or explanation; and “this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed.” Cooke v. U. S., 267 U. S. 517, 535-537, 45 S. Ct. 390, 395, 69 L. Ed. 767. See also In re Terry, supra, 128 U. S. 289, 307, 9 S. Ct. 77, 32 L. Ed. 405; 4 Bl. Com. 286.
As pointed out in the Terry and Cooke Cases, the power of the court to punish summarily for offenses committed under its eye and within its view rests upon its ability to see and hear what occurs in its presence and upon the demoralization of its authority which would inevitably follow if such con-tempts were not instantly suppressed and punished. Thus, in the case of an assault made in the courtroom, the judge sees the transaction with its attendant circumstances and is in position to impose punishment without acquiring information from any other source whatever. But this was not true of the contempts charged against respondent. Neither his failure to appear nor the false representation with which he is charged disturbed' the proceedings of the court or tended to demoralize its authority, and neither constituted a matter which with its attendant circumstances was under the eye or within the personal knowledge of the judge. The judge knew of the order to respondent to appear and of respondent’s failure to comply with the order, but he did not know the circumstances surrounding such failure or what reason or excuse respondent may have had therefor; and he was no more justified in imposing summary punishment under such circumstances than he would have been in entering final judgment upon an appearance bond without first issuing a scire facias or other notice. He knew that respondent had represented in his presence that he was a practicing attorney of the District of Columbia, but he did not know that this statement was untrue until he learned from an outside source that he had been disbarred by the Supreme Court of the District. A contempt of this sort is analogous to false swearing, which is punishable as contempt under proceedings had under rule to show cause (In re Ulmer [D. C.] 208 F. 461), but may not be punished summarily except where the court judicially knows the evidence to be false (People v. Stone, 181 Ill. App. 475; 13 C. J. 25).
As the contempts charged were not of the class punishable summarily, the proceedings had do not meet the requirements of due process. The order of December 3d adjudging defendant in contempt was entered in his absence and without legal notice of the charges having been given him by rule, order to show cause, or other process. The order of December 3d might be treated as a rule or as an order nisi, justifying the later order imposing punishment, if respondent had been served with copy thereof or had been given opportunity to make answer to the charges therein contained; but neither of these things was done. He was brought before the court on the day of his arrest, and, although he denied ever having seen a copy of the order of December 3d or ever having heard of the charges contained therein, his request for a continuance that he might prepare and present his defense was denied. We think the proceedings had fall clearly under the condemnation of the principles laid down in the Cooke Case, supra, to which we have adverted. The error of the learned judge was doubtless due, as was the error of the judge in the Cooke Case, to the erroneous conclusion that the contempts charged were-of the class which may be punished'summarily.
For the reasons stated, the judgment and sentence of the court below will be set aside, and the ease will be remanded for further proceedings not inconsistent with this opinion.
Reversed.
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer:
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songer_jurisdiction
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D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. Bell Atlantic Corporation, Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. US West, Inc., Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. Ameritech, Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. Pacific Telesis Group, Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. BellSouth Corporation, Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. Southwestern Bell Corporation, Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., and American Telephone and Telegraph Company NYNEX Corporation, Appellant.
Nos. 90-5333, 90-5335, 90-5337, 90-5351, 90-5365, 90-5367 and 90-5373.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 21, 1992.
Decided July 24, 1992.
Stephen M. Shapiro, with whom Mark I. Levy and Michael K. Kellogg, for Bell Companies, John Thorne, Michael D. Lowe, and Michael E. Glover, for Bell Atlantic Corp., Jeffrey S. Bork, for US WEST, Inc., Richard W. Odgers, Margaret DeB. Brown, and Stanley J. Moore, for Pacific Telesis Group, Walter H. Alford and Mark D. Hal-lenbeck, for BellSouth Corp., Liam S. Coo-nan, Ann Meuleman, and Martin E. Gram-bow, for Southwestern Bell Corp., and Raymond F. Burke, for NYNEX Corp., were on the joint brief, for Bell Co. appellants in all cases.
Nancy C. Garrison, Atty., Dept, of Justice, with whom James F. Rill, Asst. Atty. Gen., and Catherine G. O’Sullivan, Atty., were on the brief, for Federal appellee in all cases.
David W. Carpenter, with whom Mark C. Rosenblum and Howard J. Trienens, were on the brief, for appellee American Tel. & Tel. Co. in all cases.
Michael H. Salsbury, with whom Chester T. Kamin and Carl S. Nadler, were on the brief, for appellee MCI Communications Corp. in all cases. Anthony C. Epstein also entered an appearance, for appellee.
Martin T. McCue entered an appearance, for appellee U.S. Tel. Ass’n in all cases.
Gail L. Polivy entered an appearance, for appellee GTE Corp. in all cases.
John E. Ingle, Deputy Associate Gen. Counsel, and Robert L. Pettit, Gen. Counsel, filed a statement, for amicus curiae F.C.C. in 90-5333, explaining an FCC order.
Before: SILBERMAN, WILLIAMS, and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
Dissenting Opinion filed by Circuit Judge STEPHEN F. WILLIAMS.
SILBERMAN, Circuit Judge:
The seven regional Bell Operating Companies (BOCs or Companies) and the United States appeal from the district court’s denial of a waiver of the AT & T consent decree to permit centralized provision of the “signaling” component of long distance telephone calls. The appellants maintain that their motion for a waiver should not be evaluated under the standard set forth in section VIII(C) of the decree — whether the proposal presents no substantial 'possibility of impeding competition — but rather under section VII and the more permissive test for unopposed decree modifications that we applied to the information services portion of the Triennial Review case: whether the requested waiver would be certain to lessen competition. See United States v. Western Elec. Co., 900 F.2d 283, 308 (D.C.Cir.) (Triennial Review Opinion ), cert. denied, — U.S. -, 111 S.Ct. 283, 112 L.Ed.2d 238 (1990).
We think that the section VIII(C) standard applies and that the BOCs failed to demonstrate • that their proposal satisfied that standard. We therefore affirm the judgment of the district court.
I.
The 1982 consent decree settled the government’s antitrust suit against the “Bell System” by first separating the BOCs and their monopolies over local telephone (“exchange”) service from AT & T and its more competitive long distance (“interexchange”) and equipment manufacturing businesses and then — with section II(D)’s “line-of-business” restrictions — prohibiting the BOCs from reentering those and other competitive markets. See generally United States v. American Tel. & Tel. Co., 552 F.Supp. 131 (D.D.C.1982) (Decree Opinion), aff'd mem. sub nom. Maryland v. United States, 460 U.S. 1001, 103 S.Ct. 1240, 75 L.Ed.2d 472 (1983); United States v. Western Elec. Co., 569 F.Supp. 1057 (D.D.C.) (Reorganization Opinion), aff'd mem. sub nom. California v. United States, 464 U.S. 1013, 104 S.Ct. 542, 78 L.Ed.2d 719 (1983).
Section II(D)(1) of the decree, which prohibits the BOCs from providing any “inter-exchange telecommunications services,” was implemented, and the scope of the seven BOCs’ local monopolies defined, by dividing the country geographically into 164 “exchange areas” (better known as “LATAs”). See generally United States v. Western Elec. Co., 569 F.Supp. 990 (D.D.C.1983) (LATA Opinion). Each local operating company (see note 2) encompasses several LATAs but is nevertheless allowed to transmit telecommunications information only between points within a single LATA, providing what is, basically, the traditional local telephone service. When a person in one LATA calls a person in another, the BOC serving the caller’s LATA must transmit the call to an interexchange carrier, such as AT & T or MCI, which then carries the" call on its own network across the LATA boundaries, where it is picked up by the BOC serving the called party’s LATA. (If the caller and called party live in different LATAs within one Company’s region, the same Company both passes and picks up the interexchange call.) Section 11(A) of the decree obliges the BOCs to provide such “exchange access” services to all interexchange carriers, and section IV(F) requires them to do so “at a point or points within [a LATA] designated by [the] interexchange carrier.” These “points of presence” in each LATA are thus the locations where the telecommunications networks of the seven Companies and the numerous interexchange carriers interconnect. See LATA Opinion, 569 F.Supp. at 994 n. 13.
The telephone “call” that a Company-passes to an interexchange carrier consists of two components. One is the actual communication (e.g., the voices) of the calling and called parties. The other is “network control signaling,” which directs the operation of the telecommunications network, telling the switches and circuits how and when to set up and disconnect a call. The signaling indicates that a receiver has been picked up, what digits were dialed, whether the called line is ringing or busy, when the phone is hung up, and so forth. When the decree was approved in 1982, almost all signaling was “in-band,” meaning that the communication and its associated network control signals were transmitted over the same circuit and therefore delivered to the interexchange carrier at the same location — the carrier’s point of presence in each LATA. In-band signaling, however, has significant limitations. Because the signals travel over the same circuit as the callers’ communication, they must precede or follow the communication. In-band signaling is also relatively slow and can carry relatively little information.
In recent years a new signaling technology has emerged. In “out-of-band” or Common Channel Signaling (CCS), the signals are transmitted over a system of switches and circuits separate from that of the communications they control. The CCS and communications networks are not parallel but rather linked only at special CCS switches known as Signal Transfer Points (STPs). Out-of-band signaling is much more efficient than in-band. The CCS network contains only signals, which can be packeted into bursts of information and loaded into a circuit with no gaps; in contrast, a single voice communication takes up an entire circuit, even when the parties are not saying anything. As a result, a single CCS circuit can carry the signaling for over 10,000 calls. Each STP pair, moreover, can be connected to multiple communications switches, allowing a few STP pairs to serve a very large area.
The advantages of CCS are undisputed. Its speed'markedly reduces call set-up time — the time between dialing on one end and ringing on the other — a benefit of particular value to long distance service. It also frees circuits for communications by not clogging them while callers listen to busy signals or service announcements. And it provides the technological foundation for a variety of new telecommunications services, including some for which the signaling functions as part or all of' the communicated information. For example, CCS enables the telephone number of the calling party to be transmitted to the called party, allowing such caller identification features as distinctive ringing and selective call screening, call waiting, and call forwarding.
The BOCs have begun to deploy CCS networks for use in providing local (intra-LATA) exchange services. The CCS efficiencies and network structure have allowed the Companies to deploy centralized STP pairs, each pair having the capacity to serve several of a Company's LATAs. US WEST’S STP pair in Minneapolis, for example, serves U S WEST switches in six of its LATAs. In 1989, in fact, the BOCs predicted that all 164 LATAs could be served by only 27 STP pairs, although many more pairs have been installed in the last three years. The interexchange carriers have also been deploying CCS networks for use in their interexchange systems. AT & T inherited the Bell System’s nascent CCS network at divestiture, and MCI has also extended signaling facilities to almost every LATA. The smaller carriers have lagged somewhat behind.
This case is brought because the BOCs have not yet installed an STP pair in every LATA and wish to avoid having to do so just to allow the interexchange carriers to connect in every LATA. Instead, they would like authority to provide the carriers access to CCS service only at certain centralized locations. Under their proposal, in other words, there would not be a section IV(B) point of presence — at least for this service — in every LATA. Thé BOCs maintain that meeting the section IV(B) requirement for CCS would be expensive and inefficient for both them and the interexchange carriers, particularly the smaller ones. It is claimed that not all LATAs (especially in less populated areas) have sufficient call volume to cost-justify their own STP and that the smaller carriers also could not afford construction of a CCS link to an STP in every LATA. AT & T and MCI, on the other hand, with significant investment in CCS systems more extensive than their smaller competitors, want interconnections in every LATA so as to benefit from those investments.
In February 1989 US WEST filed a motion in the district court requesting a waiver “of the Decree” to allow centralized signaling interfaces. (Under its proposal, the communications component of interexchange calls would still be provided at the point of presence in each LATA, as would in-band signaling if the carrier so requested.) US WEST purported to act “pursuant to section VII of the Decree,” a provision that authorizes the district court to modify the decree upon application of any party. Section VII does not include any criterion for judging proposed changes, so motions under it are presumed to be governed by the appropriate common law standard. See Triennial Review Opinion, 900 F.2d at 305-07. Changes uncontested by any party to the decree are granted if - “within the reaches of the public interest,” id. at 306 (quotation marks omitted) — that is, unless they are “certain to lessen competition,” id. at 308.
The positions of the decree parties in this case were divided. The other six BOCs supported US WEST’S motion and filed similar motions of their own. The Department of Justice (DOJ) told the Companies to file directly in the district court, claiming that the motions did not involve a modification of the line-of-business provisions and so the DOJ pre-screening procedure, see United States v. Western Elec. Co., 592 F.Supp. 846, 873-74 (D.D.C.1984), appeal dismissed, 777 F.2d 23 (D.C.Cir.1985), was inapplicable. The DOJ then filed a “memorandum” supporting the CCS waiver request.
However, the remaining party to the decree, AT & T, opposed the Companies’ motions, arguing that section IV(F) of the decree expressly obliges the Companies to provide access to network control signaling in every LATA and that the centralization of signaling would allow the BOCs to transmit telecommunications information— the signals — across LATA boundaries in violation of the section II(D)(1) interex-change services ban. AT & T argued that the proposal should therefore be evaluated not under section VII but under the decree’s other provision for modification, section VIII(C). That section was added to the decree to establish an explicit standard governing a particularly important type of modification:, contested changes in the decree’s core line-of-business restrictions. See Triennial Review Opinion, 900 F.2d at 291. Section VIII(C) requires a BOC seeking to waive or remove a section 11(D) restriction to demonstrate that “there is no substantial possibility that it could use its monopoly power [in the local exchange market] to impede competition in the market it seeks to.enter.” The Companies’ blanket, nationwide waiver proposal, AT & T asserted, could not satisfy that test, and the BOCs were unwilling to limit their request to transitional.waivers for the particular LATAs for which a specific showing of low call volume and inefficiency of STP and CCS link installation might be made. MCI, intervening, essentially joined AT & T in these arguments.
The district court, shortly after our Triennial Review Opinion issued, held that the waiver proposal did not satisfy the section VIII(C) test. See United States v. Western Elec. Co., 131 F.R.D. 647, 650-52 (D.D.C.1990) (Waiver Opinion), reconsideration denied, Civ. No. 82-0192 [1990 WL 139788, 1990 U.S.Dist. LEXIS 12153] (D.D.C. Sept. 6, 1990) (Reconsideration Opinion). The BOCs and the Department of Justice appeal.
II.
The dispute between the parties has two main facets. The Companies and the Justice Department contend that the waiver request does not substantially implicate the decree’s line-of-business restrictions and therefore that the standard to determine whether it should be granted is not the potentially demanding section VIII(C) test but- rathér the more relaxed public interest test embodied in section VII. Alternatively, the appellants maintain that the applicability of section VIII(C) turns on the position of the DOJ — the plaintiff and “Prime Mover” in the antitrust ease underlying the decree. Even if section VIII(C) would apply had the government contested the CCS waiver, the argument goes, section VII and the public interest test govern here because the DOJ does support the proposal. AT & T’s opposition to a modification of a line-óf-business restriction, the appellants claim, has no more significance than that of other, non-party interexchange carriers.
The first argument is based on the notion that the centralization of signaling interfaces involves primarily not an entry into the interexchange services' market prohibited by section II(D)(1) but rather a redefinition of the Companies’ obligation under section IV(F) to provide network control signaling in each LATA. The appellants assert that a small adjustment in the definition of the BOCs’ exchange access monopoly is distinguishable from an “entry” into a new and competitive line of business, even though the CCS waiver might “affect” the interexchange market. We think that is a distinction without a difference. By that logic, the decree’s most sensitive restriction placed on the Companies might be eroded merely by redefining the decree’s terms. The Companies could, for example, just as well move to redefine “interexchange telecommunications” as transmission of information from one Company’s region to another’s, rather than from one LATA to another, vastly expanding the Companies’ monopolies. It is therefore plain to us that the CCS waiver would not merely change the details of existing exchange access service, but would allow the BOCs to expand their monopolies over exchange access into a slice of the competitive interexchange services market — maybe a narrow slice, involving (for now) only the transmission of traditional network control signaling between the LATAs in each Company’s region, but a slice nevertheless. Therefore, a modification that requires a change in a line-of-business restriction is, if contested, governed by the section VIII(C) test.
The more serious argument, that the relaxed section VII public interest standard governs waivers supported by the DOJ whether or not opposed by AT & T— i.e., if the DOJ approves a waiver, it is not “contested” — is largely a product of a footnote in our Triennial Review Opinion. See 900 F.2d at 294 n. 12. We affirmed, in that case, the district court’s refusal to lift the decree’s ban on the BOCs’ manufacturing of telephone equipment, see id. at 301-04, but reversed a similar refusal to allow the Companies to provide information services, see id. at 305-09. We drew a distinction between proposed modifications of the line-of-business restrictions that were unopposed by the other two parties to the decree (the government and AT & T), and waivers contested by either or both of them. The latter were governed by the section VIII(C) standard, whereas uncontested proposals were to be judged by the more lenient “within the reaches of the public interest” standard. See id. at 305-07.
We also noted that the decree contemplated that only the Companies could petition under section VIII(C) for modification of the line-of-business restrictions. See id. at 294-95. Therefore, if the DOJ wanted an alteration of those restrictions it would necessarily proceed under section VII, the provision authorizing any party to seek decree modifications. See id. at 294. We then added a footnote raising a question as to what standard would apply to such a motion:
The Government opposed the modification sought in Swift, and therefore it is not at all clear to us that the stringent, so-called “unforeseen conditions” test of Swift would apply to motions brought by the DOJ under section VII. Since the DOJ is, as plaintiff, the “Prime Mover” of this case, it may well be that modifications it seeks should be evaluated under a standard somewhat more akin to the “public interest” test of the Tunney Act. Still, it is true that the line of business restrictions were part of what AT & T bargained for in the original decree, therefore suggesting that the modification requests that AT & T opposes should perhaps be viewed differently from those that all the parties agree to. We need not pass on this issue here since the DOJ brought no motion under section VII.
Id. at 294 n. 12 (emphasis in original deleted; new emphasis added).
Appellants, relying exclusively on the italicized portion of the footnote, assert that by asking the question of what standard applied, we answered it — that we have strongly implied that the government’s support for a waiver causes the public interest test to govern. That is a strained interpretation at best, since we have clearly indicated that if AT & T opposes a line-of-business modification, then DOJ’s support, in whatever1 form, does not relieve the Companies from meeting the section VIII(C) test. Thus, in the Triennial Review Opinion itself we treated the BOCs’ motion to remove the manufacturing line-of-business restriction as contested and subject to the section VIII(C) standard notwithstanding DOJ’s support for the proposal. See id. at 301. And in the subsequent NYNEX Procurement Opinion (United States v. Western Elec. Co., 907 F.2d 1205 (D.C.Cir.1990)), where it was the Justice Department that formally moved for a waiver of a section 11(D) restriction, we said that the Department “bears the same burden that [the BOC] would” and remanded for the district court to determine whether AT & T had properly opposed the waiver. See id. at 1207-09 & n. 3.
Appellants nevertheless, and for the first time in this' series of cases, squarely challenge the proposition that AT & T’s opposition to a proposed change should have such important consequences as to trigger the more stringent section VIII(C) standard. They argue that AT & T’s “rights” under the decree are unaffected by changes in the line-of-business restrictions on the BOCs, and therefore that AT & T’s “legal or equitable status” in relation to the CCS waiver should be thought no different than any other interexchange carrier’s — i.e., not significant enough to affect the standard by which we evaluate the proposal. See Triennial Review Opinion, 900 F.2d at 292, 305-07 (opposition by non-party inter-venors does not make the information services modification “contested” and subject to the section VIII(C) test). Appellants point in particular to the Justice Department’s role as the “principal proponent” of the line-of-business restrictions, Decree Opinion, 552 F.Supp. at 186 n. 227, and to AT & T’s' professed neutrality or opposition to those restrictions during the decree negotiations. As those provisions were not part of the “bargain” AT & T sought, we are told, AT & T’s opposition to their, alteration now should be deemed legally inconsequential.
It is, however, those line-of-business restrictions that prevent the Companies from a full-bore entry into the interexchange market. It seems more than passing strange to suggest that the decree should be interpreted so as not to allow AT & T to contest, under section VIII(C), the BOCs’ complete entry into the interexchange market. After all, the AT & T lawsuit was based on the premise that a corporation that enjoyed a monopoly on local calls would ineluctably leverage that bottleneck control in the interexchange (long distance) market. See id. at 142, 188-89. The Bell System was for that reason broken up; the local monopolies were taken away from AT & T. (Of course, “AT & T” is a different entity after the decree than it was before.) To claim that AT & T has no interest under the decree in challenging one or more of the Company’s “return” to the interexchange market, there to compete against AT & T with the same sort of local monopoly leverage that caused the government to bring suit against AT & T in the first place, has an ironic, even Kafkaesque, quality. By the appellants’ logic, if the BOCs’ proposed entry into the interex-change market was likely to impede competition (which would violate the section VIII(C) test) but not certain to do so (thus surviving section VII’s public interest test), and if the government did not object, the district judge would be obliged to permit the entry. Are we to believe that AT & T had in 1982, and has today, no interest in effectively objecting to such a proposal?
The dissent responds to our question in the negative. Judge Williams argues that AT' & T has no institutional interest in competition in the interexchange market, and thus to read the decree to allow AT & T to object to any sort of BOC entry into that market — including a complete and full-scale entry — is to sanction a broad “allocation” of telecommunications markets in contradiction to the purpose of the antitrust laws. Dissent at 1243-44. That argument, which has the virtue of boldly confronting the core problem with appellants’ case (even if it is an argument that neither appellants nor the government dare make), is nothing less than an attack on the very premise of the consent decree. AT & T today, after all, has the same economic interest vis-a-vis the BOCs’ effort to gain access to the interexchange market that MCI (the company that first sought to'compete against the Bell System in the interex-change market) had at the time the government’s lawsuit was brought against the Bell System. MCI then, and both AT & T and MCI now, seek to confine the BOCs to that portion of the telecommunications market in which they enjoy a historical natural monopoly.
Certainly there is nothing in the language of the decree that suggests that AT & T should be thought unconcerned with the line-of-business restrictions, so that it should be regarded as not a “real” party with respect to those matters. It is not, as our dissenting colleague puts it, that we “assume[] that just because the Department of Justice and AT & T are parties to the same contract, and both have interests in the line-of-business restrictions (one acting for the public, the other for its shareholders), it follows that they must have identical rights in relation to those restrictions.” Dissent at 1245. To the contrary, section III treats AT & T as a formal party to the entire decree, with specific authority under section VII to demand enforcement of any section of the agreement. Indeed, in a 1987 filing in the district court, the government stated that AT & T “ha[s] the right to seek enforcement [of a line-of-business restriction]... itself at any time,” citing section VII. Nor have we been shown any precedent applying a variable standard to judge a suggested modification of general language of a decree, depending on which party objects.
Appellants have, nevertheless, combed the multitude of documents filed and hearing transcripts generated during the decree approval proceedings and have found numerous examples of Bell System representatives (who now work for AT & T) professing opposition to the line-of-business restrictions or acceptance of them simply as a step towards an overall settlement. Appel-lees in turn point to some statements demonstrating more affirmative interest in the prohibitions. But what are we to make of these offerings? After all, the Bell System (pre-divestiture AT & T) had been defending itself for decades — and presumably would have continued defending itself - if the settlement negotiations failed — on the ground that vertical integration of telecommunications businesses is efficient and pro-competitive. The Bell System representatives also faced a significant inherent conflict of interest: post-divestiture AT & T, as an interexchange carrier and equipment manufacturer,. would obviously favor a complete prohibition on competition from the powerful local monopolies, while the post-divestiture BOCs would undoubtedly desire no such restrictions. The Bell System’s duty at the time was, of course, to maximize the combined future value of AT & T and the BOCs for its (and soon to be their) shareholders. See United States v. Western Elec. Co., 797 F.2d 1082, 1088 (D.C.Cir.1986), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 698 (1987). Perhaps to satisfy that obligation perfectly was psychologically impossible, but we presume that the negotiators fulfilled their duty and thus that the decree, and especially the section 11(D) prohibitions at its core, represents a balanced amalgamation of benefits to and burdens upon both AT & T and the BOCs. For that reason, we think recourse to the decree’s bargaining history to interpret how those who were negotiating for the unified Bell System saw the benefits and burdens distributed between post-divestiture AT & T and the BOCs is of little use today. Cf. Triennial Review Opinion, 900 F.2d at 293 (decree negotiating history may be useful in other contexts).
The Justice Department, although it does not go so far as our dissenting colleague in challenging the consent decree as an anti-competitive division of the telecommunications industry, does caution that we should not “interpret” the decree to give AT & T a “strong incentive to oppose pro-competitive decree modifications in order to protect itself from the very competition such modifications could promote.” This contention is, as the dissent elaborates, sort of a variation on the antitrust injury doctrine. See, e.g., Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 109-13, 107 S.Ct. 484, 488-91, 93 L.Ed.2d 427 (1986). But if, as the dissent suggests, AT & T should not be thought to have “antitrust standing” to assert its apparent rights under the decree because the BOCs’ entry into the interex-change market would come at AT & T’s expense, Dissent at 1247-48, then it follows that MCI should not have had standing to file suit, see MCI Communications Corp. v. American Tel. & Tel. Co., 708 F.2d 1081 (7th Cir.), cert. denied, 464 U.S. 891, 104 S.Ct. 234, 78 L.Ed.2d 226 (1983), or to complain to the Justice Department, concerning the Bell System’s activities in the interex-change market in the first place. That AT & T is now the largest carrier in the inter-exchange market hardly immunizes it against antitrust injury from new competitors who are monopolists in the local exchange markets. The flaw in our colleague’s reasoning, we respectfully suggest, is that he entirely ignores the potential anti-competitive leverage that the BOCs’ monopoly position in the bottleneck local markets affords their entry into the interexchange markets.
Insofar as the government believes that there are pro-competitive aspects of a BOC’s proposed “reentry” into part or all of the interexchange market, it can aid the BOC in seeking to meet the section VIII(C) test by showing that the proposal will enhance rather than impede competition. The government expresses particular concern that AT & T might somehow use its rights under section VIII(C) to handicap its existing interexchange competitors by making it more difficult for the BOCs to provide services to those competitors in the interexchange market. We note, however, that AT & T’s fiercest competitor, MCI, supports AT & T’s construction of the decree, and that although the BOCs claim that AT & T’s smaller competitors would benefit from both the CCS proposal and their construction of the decree, none of those companies appeared before us. It should be remembered that section VIII(C) does not give AT & T the power to veto truly pro-competitive line-of-business modifications, only to block those changes that are quite possibly, though not certainly, anti-competitive.
In any event, as MCI observes, the question before us is not how we would fashion the decree if we were writing on a clean slate. The decree is not ambiguous; it gives AT & T the right, as a party to the decree, to assert its objection to the BOCs’ proposal and thus to invoke section VIII(C). Until this case, the government never even suggested that the decree could be read otherwise.
We are thus persuaded by AT & T’s argument that the CCS waiver must be judged according to section VIII(C)’s standard, for whenever a modification implicates the line-of-business restrictions and is contested by any of the parties to the decree, the section VIII(C) test governs. Even if we had doubts, however, we think our prior decisions in the Triennial Review and NYNEX Procurement cases would deter us from accepting appellants’ argument. It may be, as the BOCs contend, that the premise we here reaffirm — that AT & T’s opposition makes a line-of-business modification “undeniably ‘contested,’ ” Triennial Review Opinion, 900 F.2d at 292, regardless of the government’s position — was not forcefully argued in those cases. The BOCs did assert to the district court in Triennial that AT & T had no interest under the decree in the line-of-business restrictions. On appeal, the Companies referenced that argument but emphasized the converse point — that AT & T’s acquiescence in the removal of the information services ban left that proposal uncontested (notwithstanding the opposition of other interexchange carriers that were not decree parties). We were, therefore, clearly focused on the significance of AT & T’s position, and but for AT & T’s opposition, we would have reversed and remanded the manufacturing portion of Triennial just as we did the information services portion. Indeed, in discussing the latter proposal, we explained that “[f]or purposes of identifying the proper standard of review, the critical point is that neither AT & T nor the DOJ opposed the... motion.” Id. at 305 n. 27 (emphasis omitted). And in the NYNEX Procurement Opinion we again viewed AT & T’s position as pivotal, directing the district court on remand to apply the section VIII(C) standard if AT & T had properly contested the (government-supported) waiver. See 907 F.2d at 1209.
The proposition that AT & T’s position on a proposed line-of-business modification can be determinative of whether the section VIII(C) test applies has thus been a linchpin of two of our opinions. Although it is true that we cannot be said to have held that AT & T’s opposition makes a requested modification contested — because the point was not directly controverted— we do not think that the Companies can opportunistically, after so much litigation involving the same parties, switch their position and challenge that proposition at this late date. Cf. Northwestern Ind. Tele. Co. v. FCC, 872 F.2d 465, 470 (D.C.Cir.1989), cert. denied, 493 U.S. 1035, 110 S.Ct. 757, 107 L.Ed.2d 773 (1990); Laffey v. Northwest Airlines, Inc., 740 F.2d 1071, 1089-90 (D.C.Cir.1984) (per curiam).
III.
The appellants’ submissions to the district court were not clearly focused on the section VIII(c) test — that is, on demonstrating that the CCS waiver posed no substantial possibility of impeding competition in the interexchange services market. Nor are their appellate briefs primarily directed to this point. We are rather disappointed, particularly in light of our remarks in the Triennial Review Opinion as to the importance of the DOJ’s predictive economic analysis, see 900 F.2d at 297-98; accord NYNEX Procurement Opinion, 907 F.2d at 1209, that the Department’s market analysis in this case was so perfunctory. See Reconsideration Opinion, Mem. at 2. Based on the existing record, we do not see how the district judge’s conclusion that the Companies’ proposed waiver does not meet the section VIII(C) test, see Waiver Opinion, 131 F.R.D. at 652, can be thought erroneous. See Triennial Review Opinion, 900 F.2d at 293-94 (discussing standard of review in section VIII(C) cases).
In the Triennial Review Opinion, we determined that the BOCs cannot “impede competition,” as that phrase is used in section VIII(C), unless they will possess market power—the ability to restrict output and/or raise, prices—in the market they seek to enter via the proposed decree modification. See 900 F.2d at 296. Although neither the parties nor the district court performed a detailed market definition, it appears, as we have noted, see supra note 11, that the CCS waiver would allow the BOCs to enter the interexchange services market. The district court determined that by transmitting network control signals across LATA
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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