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songer_bank_app1
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether or not the first listed appellant is bankrupt. If there is no indication of whether or not the appellant is bankrupt, the appellant is presumed to be not bankrupt.
Frederick C. LUCIUS and Carliss Jean Lucius, Debtors-Appellants, v. John C. McLEMORE, Trustee-Appellee.
No. 83-5641.
United States Court of Appeals, Sixth Circuit.
Submitted July 19, 1984.
Decided Aug. 23, 1984.
H. Marshall Judd, Cookeville, Tenn., for debtor s-appellants.
John C. McLemore, Nashville, Tenn., for trustee-appellee.
Before ENGEL and KENNEDY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
PER CURIAM.
This case raises the question when a debtor may amend his filed schedules to add to the list of exempted property. We hold that under Rule 110 of the old Federal Rules of Bankruptcy Procedure and Rule 1009 of the new Rules the debtor may amend his list as a matter of course at any time before the close of the case.
The debtors, Frederick C. and Carliss Jean Lucius, filed a voluntary petition in bankruptcy on October 20, 1982. The Luci-uses filed a Schedule B-4, claiming as exempt property clothing, household goods and furnishings, and an income tax refund. The Luciuses also filed statements indicating that they owned two vehicles, a Dodge van and a Buick, and that a bank held a security interest in the Buick.
The creditors’ meeting was held on December 16, 1982. The bank did not participate and, upon inquiry by the trustee, stated that the Luciuses’ obligation had been paid in full previously. The trustee then asked the Luciuses to surrender the two vehicles; counsel responded that the Luci-uses had moved to Minnesota, taking the vehicles with them.
On January 18, 1983, the trustee filed suit against the Luciuses to prevent their discharge in bankruptcy, and to obtain the vehicles; the Luciuses were served with the complaint on February 4, 1983. At a pretrial conference, the trustee conceded that the Luciuses did not move the vehicles with the intent to hinder or delay the trustee’s administration of the estate, but contended that their refusal to surrender the vehicle was producing that effect.
On February 7, 1983, the Luciuses filed a petition with the Bankruptcy Court to amend the schedule of exemptions to add the vehicles. The trustee objected to the proposed amendment as untimely. The bankruptcy judge, as standing master, filed a report recommending that the petition be denied. Although the Luciuses objected to the report, the District Court denied the petition as untimely. This order is now on appeal before this Court.
Rule 110 of the old Federal Rules of Bankruptcy Procedure, in effect when this case was heard, provided, “A voluntary petition, schedule, or statement of affairs may be amended as a matter of course at any time before the case is closed.” The courts in the Middle District of Tennessee have held that Rule 110 was effectively rescinded by its conflict with 11 U.S.C. § 522(Z), which states:
The debtor shall file a list of property that the debtor claims as exempt under subsection (b) of this section. If the debtor does not file such a list, a dependent of the debtor may file such a list, or may claim property as exempt from property of the estate on behalf of the debtor. Unless a party in interest objects, the property claimed as exempt on such list is exempt.
These courts have reasoned that section 522(Z), by requiring that parties in interest be given time to object to proposed exemptions, limited the time during which exemptions can be claimed as of right to the 15-day period for objections established by former Rule 403. See, e.g., In re Williams, 26 B.R. 741 (Bankr.M.D.Tenn.1982); In re Brewer, 17 B.R. 186 (Bankr.M.D. Tenn.), aff'd, 22 B.R. 983 (M.D.Tenn.1982).
Rule 110 has been adopted without substantive change as Rule 1009 of the (new) Federal Rules of Bankruptcy Procedure, effective August 1, 1983: “A voluntary petition, list, schedule, statement of financial affairs, statement of executory contracts, or Chapter 13 Statement may be amended by the debtor as a matter of course at any time before the case is closed.” This readoption indicates that Congress perceived no inconsistency between this rule and the Bankruptcy Code, including section 522(Z). The Advisory Committee Note to Rule 1009 reaffirms the legislative intent to allow amendment as a matter of course for schedules, including lists of exempt property.
This rule continues the permissive approach adopted by former Bankruptcy Rule 110 to amendments of voluntary petitions and accompanying papers. Notice of any amendment is required to be given to the trustee. This is particularly important with respect to any amendment of the schedule of property affecting the debtor’s claim of exemptions.
(Emphasis added.)
This “permissive approach,” allowing amendment at any time before the case is closed and denying courts discretion to reject amendments, has been endorsed in several circuits. See Shirkey v. Leake, 715 F.2d 859, 863 (4th Cir.1983); In re Doan, 672 F.2d 831, 833 (11th Cir.1982); In re Gershenbaum, 598 F.2d 779 (3d Cir.1979); In re Andermahr, 30 B.R. 532 (Bankr. 9th Cir.1983). Courts may still refuse to allow an amendment where the debtor has acted in bad faith or where property has been concealed. See Doan, 672 F.2d at 833. Moreover, under § 522(¿) the proposed exemptions are subject to objection by a party in interest. See, e.g., Andermahr, 30 B.R. at 534; In re Maxwell, 5 B.R. 58 (Bankr.N.D.Ga.1980).
Accordingly, we reverse the order of the District Court denying the debtors’ application to amend their Schedule B-4 and remand for further proceedings.
. Local Rule 15 of the United States Bankruptcy Court for the Middle District of Tennessee, deleted March 1, 1984, implemented Rule 110.
. The bankruptcy judge who originally acted as standing master in this case has recently indicated that he now believes that the precedents of the Middle District of Tennessee rejecting a right to amend under Rule 110, upon which he presumably based his recommendation in this case, no longer have validity. See In re Davis, 38 B.R. 585 (Bankr.M.D.Tenn.1984) (Lundin, J.).
Question: Is the first listed appellant bankrupt?
A. Yes
B. No
Answer:
|
songer_const1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
David MACKEY, et al., Plaintiffs-Appellants, v. JUDY’S FOODS, INC., et al., Defendants-Appellees.
No. 87-5391.
United States Court of Appeals, Sixth Circuit.
Argued July 29, 1988.
Decided Feb. 10, 1989.
Thomas P. Malone (argued), Minneapolis, Minn., Raymond G. Prince, Nashville, Tenn., Alan Mark Turk, for plaintiffs-appellants.
Tyree B. Harris, Nashville, Tenn., Mark H. Lynch (argued), Covington & Burling, Washington, D.C., for defendants-appel-lees.
Before: MILBURN and BOGGS, Circuit Judges; and CONTIE, Senior Circuit Judge.
BOGGS, Circuit Judge.
Mackey and other franchisees sued franchisors, Judy’s Foods and its parent companies, claiming fraud, breach of contract, violation of the Tennessee Consumer Protection Act and intentional infliction of emotional distress. The district court granted summary judgment for the franchisors based on its determination that the statutes of limitations and a validly executed release signed by the franchisees and Judy’s Foods barred all of the claims brought by the franchisees. 654 F.Supp. 1465 (M.D.Tenn.1987).
We agree with the district court that all of the franchisees’ claims are barred by either the applicable statute of limitations or the release. Therefore, we affirm the decision granting summary judgment to the franchisors.
I
Judy’s Foods, originally formed by General Care Corporation and later sold to the Hospital Corporation of America, was a franchise operation selling fast food. When it first began selling franchises, Judy’s Foods was illegally appropriating the format of Wendy’s International. In 1979, the franchisees in this action signed a Prospective Licensing Agreement, creating the option for them to own and operate two restaurants in Alabama. The contract specified that Tennessee law would apply to its interpretation. At this time, Judy’s Foods knew that it would have to change its format to avoid litigation by Wendy’s, but did not tell the franchisees about this or any other problems relating to the operation of the franchises.
The franchisees built their restaurants according to the original format, unaware that they would have to change that format shortly thereafter. When the franchisees finally learned of the suit which was ultimately filed by Wendy’s, the franchisors told them that the suit was without merit. The franchisors gave the franchisees $12,-000 to change the format of the two restaurants, but denied that the change was related to problems with Wendy’s.
Dyer, one of the franchisees, began contacting the franchisors with complaints in June 1979, alleging that Judy’s Foods was not living up to its agreement. The franchisees claim to have relied on promises in the licensing agreement that the franchisors would open over 500 restaurants nationwide, and would advertise nationally. However, in January 1980, the franchisors suspended the offer and sale of franchises.
In 1980, there were two meetings of franchisees. Dyer attended both of those meetings. He claims that there was no mention of litigation at either meeting, but his notes from the first meeting include the phrase “legal action,” and a legal committee was established at this meeting. Dyer was not on the legal committee, but did chair a committee which included a plaintiff in another suit against the franchisors. In addition, attorneys who would later represent other franchisees in their suits against the franchisors were also present at this first meeting.
The second meeting was held in November 1980, after other franchisees had filed suits against the franchisors in May, August and September of 1980. The plaintiffs in those suits, and their attorneys, were present at this meeting. Again, Dyer claims that there was no mention of litigation at this meeting.
On May 20, 1981, Mr. Grammer, a franchisee and plaintiff in one of the other suits against the franchisors, sent a letter and questionnaire to all franchisees asking for help with his suit and suggesting that other franchisees initiate their own suits. However, the franchisees claim that this letter was followed by a letter from the franchisors alleging that Grammer’s suit was “unfounded.” The franchisees contend that they believed the franchisors rather than Grammer, and they thus thought Grammer’s suit was baseless.
On November 9, 1981, the franchisees and Judy’s Foods, but not Judy’s Foods’ parent corporations, General Care Corporation and Hospital Corporation of America, signed a termination and cross-release agreement. An employee of the franchisors explained that the document was like a divorce, and also informed the franchisees that there were other suits pending against Judy’s Foods at the time. Judy’s Foods paid the franchisees $20,000 in consideration for signing the release and the franchisees paid Judy’s Foods $2,900 in royalties and equipment costs which were in arrears.
Almost a year later, the jury in one of the other suits against the franchisors awarded a large sum to the franchisees. Other large awards followed in the other suits. Dyer’s brother sent him a newspaper clipping reporting one of the verdicts. This is when Dyer claims he first knew of the existence of the franchisees’ cause of action against the franchisors.
Both a magistrate and the district court found that the franchisees had actual notice of the existence of their claims by the first meeting of the franchisees in November 1980. Thus, their claims accrued at that time. The court held that various statutes of limitations barred all claims except the contract claim. The district court, unlike the magistrate, applied Alabama’s substantive contract law to the interpretation of the release. Because Alabama law requires the tendering back of consideration (which the franchisees failed to do) before one can challenge the validity of a release, the court ruled that the release barred the remaining contract claim.
II
Summary judgment is appropriate when the moving party can show that “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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).
In deciding what substantive law applies, one must first look to the forum state’s choice of law statute. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 96 S.Ct. 167, 46 L.Ed.2d 3 (1975). However, we must apply the procedural law, including statutes of limitations, of the forum state, Tennessee. Whitfield v. City of Knoxville, 756 F.2d 455, 461 (6th Cir.1985). Clearly, Tennessee law governs the claim under the Tennessee Consumer Protection Act. Tenn.Code Ann. § 47-18-101 et seq. (1980). We must then determine, by reference to the Tennessee choice of laws statutes, what law applies to the tort claims, the contract claim, and the release.
Tennessee choice of law rules indicate that the law of the state in which the tort claim arises controls. Winters v. Maxey, 481 S.W.2d 755 (Tenn.1972); Parsons v. American Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698 (1934). Thus, Alabama law provides the substantive law for resolution of the plaintiffs’ tort claims.
As regards the contract claims, under Tennessee law, the validity of a contract and the substantive rights of the parties to the contract are governed by the law of the state contemplated by the parties; in the absence of evidence to the contrary, the parties are presumed to have intended to contract pursuant to the laws of the state in which the contract was entered into. Boatland, Inc. v. Brunswick Corp., 558 F.2d 818, 821 (6th Cir.1977). Here, the parties entered into the contract in Tennessee, and the licensing agreement provided that Tennessee law would govern any disputes arising from the contract. Thus, the contract claim must be analyzed under Tennessee law.
A release is treated differently from other contracts for choice of laws purposes when considering the effect of the release on tort claims involving nonparties to the release. State ex rel. Neff v. Cotton Belt Insurance Co., Inc., No. 87-101-11, slip op. (Tenn.Ct.App., December 2, 1987) [1987 WL 28386]; Restatement, Conflict of Laws § 389; Wharton, Conflicts of Laws (3rd ed.) § 475(b); 76 C.J.S. Release § 39; Western Newspaper Union v. Woodward, 133 F.Supp. 17 (W.D.Mo.1955). However, when the effect of the release on the contract claims between the parties to the release is considered, it is to'be treated as a standard contract. Restatement (2d) of Conflicts of Laws, § 170, Comment b. Thus, just as Tennessee law applies to the licensing agreement, so too does Tennessee law apply to the effect of the release on the contract claim. Neff, slip. op. No. 87-101-11 (Tenn.Ct.App., December 2, 1987).
Thus, the tort claims are governed by Alabama substantive law; the contract claim is governed by Tennessee substantive law; and the release, as it affects the parties to the release, is governed by Tennessee substantive law, also. Tennessee statutes of limitations apply to all claims in that those statutes are procedural.
Ill
Before turning to an analysis of how the various statutes of limitations affect the plaintiffs’ claims, we must first determine when those claims accrued. A claim accrues when the plaintiffs discover their injury or “through the exercise of reasonable care and diligence [it] should have been discovered.” McCroskey v. Bryant Air Conditioning Co., 524 S.W.2d 487, 491 (Tenn.1975). Both the magistrate and the trial judge found as fact that the plaintiffs knew or should have known, through the exercise of reasonable diligence, of their injury and its source by November 4, 1980, three years and two months before they filed suit. We agree. Plaintiff Dyer complained to Judy’s Foods on June 19, 1979 in a letter. The plaintiffs in the other suits had enough information to file their suits in May, August, and September 1980. All of those plaintiffs were present at the February 1980 meeting, and one of them was on the committee that Dyer chaired. Plaintiff Dyer’s own notes from that meeting contain the phrase “legal action.” In addition, the plaintiffs were aware that General Care Corp. had sold Judy’s Foods to the Hospital Corporation of America by November 9,1979. Any one of these facts taken alone might not have alerted the plaintiffs to the defendants’ questionable conduct; however, taken together, with the use of reasonable diligence they should have alerted the plaintiffs to the existence of their causes of action. Further, even when, as here, plaintiffs argue that a statute of limitations should be tolled for equitable reasons by the fraudulent concealment of the causes of action, the statute is tolled “only during the period when the plaintiff has no knowledge that a wrong has occurred, and, as a reasonable person is not put on inquiry.” Security Bank & Trust Co. v. Fabricating, Inc., 673 S.W.2d 860, 865 (Tenn.1983) (citation omitted). Because we agree with the district judge that no reasonable juror could find that the plaintiffs were not put on notice by November 1980 of their claims against the defendants, we must agree with the trial judge that the claims accrued no later than that date.
A
In that the Tennessee Consumer Protection Act claim is governed by the Act’s one-year statute of limitations, Tenn.Code Ann. § 47-18-110, the plaintiffs’ claims under that statute obviously.are time-barred. We must determine the effects of the applicable statutes of limitations on the other claims raised by the plaintiffs.
B
In Tennessee, the appropriate statute of limitations is determined by the type of injuries claimed and the damages sought. The gravamen of most of the tort claims sounds in fraud. The appropriate statute of limitations in fraud actions is three years. Tenn.Code Ann. § 28-3-105. The claim for intentional infliction of emotional distress is most closely analogous to an action for injury to the person, and thus the one-year statue of limitations applies. Tenn.Code Ann. § 28-3-204. Because we agree with the district court that the claims accrued no later than November 1980, and because this suit was filed three years and two months after that time, we agree with the district judge that all of the tort claims are barred by the applicable statute of limitations.
IV
The only remaining claim is the claim for breach of contract. That claim is only against Judy’s, Inc., and not the other defendants. Tennessee’s statute of limitations for contract claims is six years. Tenn.Code Ann. § 28-3-109. Thus, this claim is not time-barred. However, because this claim involves only the parties who signed the release, and because we agree with the district judge that the release remains in full effect, we affirm the holding of the district court that the release barred the claim for breach of contract.
Both Tennessee and Alabama law require the tender back of the consideration for the release within a reasonable time after discovering the alleged fraud if a party wishes to rescind and repudiate the release. Boles v. Blackstock, 484 So.2d 1077 (Ala.1986) (citing Jehle-Slauson Construction Co. v. Hood-Rich Architects and Consulting Engineers, 435 So.2d 716, 719 (Ala.1983)) and Edmondson v. Dressman, 469 So.2d 571 (Ala.1985); Cordell v. Sky Rides of America, Inc., 404 S.W.2d 488, 489 (Tenn.1966). The district judge found that the franchisees had not even attempted to return the consideration they received for signing the release. The franchisees do not contest this finding. Thus, the franchisees cannot challenge the validity of the release; the release remains in full effect.
The terms of the release are very clear. It released Judy’s Foods from “all claims for damages arising out of any agreement with Judy’s.” Dyer testified in his deposition that he understood that he would not be able to sue Judy’s once he signed the release. It is clear that the franchisees knew what the release said as well as the consequences of signing it. Since it remains in full effect, it bars the franchisees’ contract claims. Thus, although we hold that Tennessee law applies to this claim, under either Alabama or Tennessee law, the result would be the same: the release bars the breach of contract claim.
V
Thus, we find that the trial judge was correct in holding that the relevant statutes of limitations bar all claims except the breach of contract claim. Further, we agree that the release bars the breach of contract claim. Thus, all of the claims alleged by the franchisees are barred by either the applicable statute of limitations or the release. The judgment of the district court is AFFIRMED.
. The franchisees claim that the franchisors did not raise this claim before this appeal, and, thus, they are barred from raising it here. They are mistaken. In the franchisors' answer to the original complaint in this action, the franchisees’ Twelfth Defense states: "Any and all claims made by plaintiffs have been discharged by appropriate releases.”
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_typeiss
|
C
|
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.
J. F. GALLEGLY, Appellant, v. P. B. WHITE, Trustee in Bankruptcy for General Mower Corporation, Appellee.
No. 9416.
United States Court of Appeals Fourth Circuit.
Argued June 19, 1964.
Decided June 24, 1964.
Howard I. Legum, Norfolk, Va. (Fine, Fine, Legum, Schwan & Fine, Norfolk, Va., on brief), for appellant.
Kenneth H. Lambert, Jr., Norfolk, Va. (Williams, Cocke, Worrell & Kelly and Thomas R. McNamara, Norfolk, Va., on brief), for appellee.
Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and MICHIE, District Judge.
PER CURIAM:
The plaintiff in this tort action has appealed from an adverse judgment entered upon a verdict of a jury for the defendant. The plaintiff objects to the admission of certain evidence into the case and to the Court’s charge. We find in the entire trial, however, no error affecting any substantial right of the plaintiff.
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_r_stid
|
01
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
In re A.G. LIVINGSTON, Debtor. Philip A. GEDDES, Trustee for the Bankruptcy Estate of A.G. Livingston, Plaintiff-Appellant, v. A.G. LIVINGSTON and Stella Livingston, Defendants-Appellees.
No. 85-7797.
United States Court of Appeals, Eleventh Circuit.
Nov. 25, 1986.
Philip A. Geddes, Decatur, Ala., pro se.
Thomas A. Caddell, Decatur, Ala., for A.G. Livingston.
Steven Y. Hammond, Chenault, Hammond and Buck, Decatur, Ala., for Stella Livingston.
Before HILL and FAY, Circuit Judges, and MORGAN, Senior Circuit Judge.
MORGAN, Senior Circuit Judge:
This is an appeal from the district court’s affirmance of Bankruptcy Judge Breland’s order that appellant-trustee could not sell appellee’s property in fee simple. After canvassing the applicable case law and bankruptcy statutes, we agree with the district court that the appellant-trustee may force a sale of debtor’s complete interests in said property, along with his wife’s life estate interest; however, her contingent remainder interest of survivorship is not subject to sale without her approval.
I. THE PROCEEDINGS BELOW
On March 8, 1972, the debtor, A.G. Livingston, and his wife, Stella, purchased a house and certain property now worth approximately $80,000.00. Both the granting and habendum clauses in the deed contained the following language: “Unto the said A.G. Livingston and Stella Livingston for and during their joint lives, and upon the death of either of them, then to the survivor of them in fee simple, and to the heirs and assigns of such survivor.” On October 21, 1983, Mr. Livingston filed an individual Chapter 7 bankruptcy petition, in which the property was listed under the exemption schedules. The trustee, Philip A. Geddes, claimed said property as property of the estate (11 U.S.C. § 541 (1982)), and attempted to sell the property in fee simple under the provisions of 11 U.S.C. § 363(h) (1982). Upon resistance by the Livingstons, this matter was brought before the United States Bankruptcy Court for the Northern District of Alabama. That court classified the debtor’s interests in the property as a tenancy in common for life with cross-contingent remainders in survivorship. Consequently, the court found that both the debtor’s and his wife’s life estates were property of the estate and that the wife was entitled to half of any proceeds derived from such sale, plus the right of first refusal regarding the sale. See 11 U.S.C. § 363(f), (h), and (i). Furthermore, the debtor’s contingent remainder was property of the estate due to the broad language of 11 U.S.C. § 541(a). Finally, the court found that Mrs. Livingston’s contingent remainder was not subject to sale in that it did not meet 11 U.S.C. § 363(h)(2), or (3).
On appeal to the district court, the bankruptcy court’s decision was affirmed in all areas, however, the district court found that Mrs. Livingston’s contingent remainder was not property of the estate under 11 U.S.C. § 363(h). Subsection (h) allows the sale of both the debtor’s interest and the co-owner’s interest only when the debtor owns the property as a tenant in common, joint tenant, or tenant by the entirety. The district court found that a tenancy in common for life with a cross-contingent remainder of survivorship was not included within the range of estates laid out in 11 U.S.C. § 363(h). The trustee appeals the district court’s interpretation.
II. CLASSIFYING THE ESTATE
Although 11 U.S.C. § 541(a)(1) holds that any legal or equitable interest the debtor held in property at the time of filing the petition becomes property of the estate, the nature of the interest is to be determined by non-bankruptcy state law. Therefore, before considering the appellant-trustee’s contentions involving his ability to compel a sale for division of the subject property, we must first establish what Mr. and Mrs. Livingston’s interests in the property are pursuant to Alabama law.
Alabama state law in relation to estates in land is just now emerging from a very perplexing inception. This is especially true in the area of joint tenancy. Alabama has traditionally favored tenancies in common over joint tenancies. Its courts construed survivorship rights in joint tenancies as destructible upon the first joint tenant’s death with his share going to his issue, thereby treating a joint tenancy as a tenancy in common. Parsons v. Boyd, 20 Ala. 112,118 (1852). In 1940, the Alabama statutes were amended, emphasizing the intentions of the parties in creating the deed (i.e., whether there would be an indestructible survivorship).
Upon examining the language of the Livingston deed, it is clear that the parties took the property as joint tenants. Therefore, the essence of their interests is qualified by Ala.Code § 35-4-7 (1975). The first important case to interpret this section was Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 (1965). Bernhard has been summarized as follows:
In Bernhard this Court (the Alabama Supreme Court) held that language in a deed conveying property to grantees as joint tenants with rights of survivorship effectively created a tenancy in common with cross-contingent remainders in each of the tenants. The Court further held that the cross-contingent remainders were indestructible, except with the consent of both cotenants.
Yates v. Guest, 416 So.2d 973, 975 (1982). Although Bernhard was later overturned by Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972), the overruling effect of Nunn is prospective only. Jackson v. Fillmore, 367 So.2d 948 (Ala.1979). Known as the “Bemhard-vánáovr,” any deeds granting joint tenancies, which were forged between July 15,1965 and November 9, 1972 will be covered by the Bernhard interpretation, explained supra. Johnson v. Keener, 425 So.2d 1108 (Ala.1983). Accordingly, the Livingstons hold a life estate in the property as tenants in common, with each owning a remainder contingent upon survivorship. Furthermore, Alabama law holds that Mrs. Livingston’s contingent remainder may not be levied upon by execution creditors in consideration of Mr. Livingston’s debts without her permission. Ala.Code § 6-9-40 (1975).
III. THE ESTATE IN RELATION TO 11 U.S.C. § 363(h)
Having determined the Livingston’s interests to be a tenancy in common for life with a cross-contingent remainder in survivorship, we now turn to the possibility of a forced sale of this estate in fee simple under the authority of 11 U.S.C. § 363(h). Section 363(h) allows the sale of the debt- or’s estate interests and co-owner interests held undivided with the debtor in property as long as the undivided interest is classifiable as a tenancy in common, a joint tenancy, or a tenancy by the entirety, with the final requirement of meeting four subsequently listed hurdles. See f.n. 1. The district court held that a tenancy in common with a cross-contingent remainder does not fit within the scope of 11 U.S.C. § 363(h), since it is not listed along with the three other types of estates. Appellant contends that the Livingston’s estate must fit into the § 363(h) parameter, since, in his opinion, the entire universe of cotenancy is composed of the three concurrent interests listed in § 363(h). In other words, the appellant argues that the joint tenancy, the tenancy in common, and the tenancy by the entirety are the three original forms of concurrent interests. Accordingly, all subsequent forms of cotenancy, such as the Livingston’s interests, although created by Alabama state law, are to be considered the progeny of the three general cotenancy types and are therefore necessarily included within the scope of § 363(h).
We agree with the district court that the Livingston’s interests are not completely covered by § 363(h). The language of the bankruptcy statute is clear and unambiguous in its listing of the three § 363(h) cotenancies. This plain language forces the conclusion that the three cotenancies are the only three in which the co-owner’s interest may be sold without his consent. In rebuttal, appellant quotes legislative history to show contrary original congressional intent: “Subsection (h) permits sale of a co-owner’s interest in property in which the debtor had an undivided ownership interest such as a joint tenancy, a tenancy in common or a tenancy by the entirety.” H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 346 (1977); S.Rep. No. 95-989, 95th Cong., 2d Sess. 56 (1978) (emphasis added), U.S.Code Cong. & Admin. News 1978, pp. 5787, 5842, 6302. The “such as” provision does not convince us of congressional intent to include more than the three cotenancies mentioned. If Congress truly intended this, it would not have subsequently deleted said provision to leave the passage in its present form.
Furthermore, a tenancy in common with cross-contingent remainders is different from either a common law tenancy in common or a common law joint tenancy. In a common law tenancy in common, there are no rights of survivorship, therefore, this is obviously not the same as the Livingston’s interests. Their interests are more similar to a joint tenancy since both types of cotenancies have rights of survivorship. However, the rights of survivor-ship in a common law joint tenancy are destructible upon the sale of a co-tenant’s interest, thereby creating a tenancy in common. R. Boyer, Survey of the Law of Property, 29-30, (3d ed. 1981). As previously stated, Ala.Code § 35-4-7 has been interpreted to construct a tenancy in common with a survivorship right which is statutorily indestructible. Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 (1965). Therefore, Alabama designed this cotenancy with the specific purpose of creating a totally different type of estate than either a common law joint tenancy or a common law tenancy in common.
IV. CONCLUSION
The Livingston’s interests created by the 1972 deed are defined within the “Bernhard window” as a tenancy in common for life with cross-contingent remainders of survivorship. We further hold that this statutorily created cotenancy was neither contemplated by Congress nor Alabama as being embraced by the language of 11 U.S.C. § 363(h). Therefore, although the trustee may sell Mr. Livingston’s life estate and contingent remainder, along with his wife’s life estate as a tenant in common, he is not authorized by § 363(h) to force a sale of Mrs. Livingston’s contingent remainder in survivorship.
AFFIRMED.
. 11 U.S.C. § 363(h) (1982): "Notwithstanding subsection (f) of this section, the trustee may sell both the estate’s interest, under subsection (b) or (c) of this section, and the interest of a co-owner in property in which the debtor had, at the time of the commencement of the case, an undivided interest as a tenant in common, joint tenant, or tenant by the entirety, only if—
(1) partition in kind of such property among the estate and such co-owners is impracticable;
(2) sale of the estate’s undivided interest in such property would realize significantly less for the estate than sale of such property free of the interests of such co-owners;
(3) the benefit to the estate of a sale of such property free of the interests of co-owners outweighs the detriment, if any, to such coowners; and
(4) such property is not used in the production, transmission, or distribution, for sale, of electric energy or of natural or synthetic gas for heat, light, or power.
. Ala.Code T.47, § 19 (1940) stated that if the parties declare in the instrument that the joint tenancy contained a right of survivorship, or use other words expressing their intention to create a valid survivorship provision, then the survivorship element is non-destructible [current version at Ala. Code § 35-4-7 (1975) ].
. The deed in question only mentions the Livingston’s as takers "for and during their joint lives.”
. Nunn v. Keith is also controlling law over preBemhard conveyances to joint tenants. Bringhurst v. Hardin, 387 So.2d 186 (Ala.1980).
. There has been no argument by any of the parties to this action that the cotenancy involved relates to a tenancy by the entirety. Therefore, we do not consider it as worthy of any in-depth discussion.
Question: What is the state of the first listed state or local government agency that is a respondent?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_respond2_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 second 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.
Mrs. Yvonne Reed LEGER, Individually and as tutrix of her minor children, et al., Plaintiffs-Appellants, v. WESTINGHOUSE ELECTRIC CORPORATION and Liberty Mutual Insurance Company, Defendants-Third Party Plaintiffs-Appellees, v. CITIES SERVICE OIL COMPANY et al., Third Party Defendants-Appellees.
No. 72-3411.
United States Court of Appeals, Fifth Circuit.
July 25, 1973.
Rehearing Denied Aug.- 28, 1973.
W. D. Atkins, Jr., Lafayette, La., for plaintiffs-appellants.
W. R. Tete, Lake Charles, La., for Cities Service & Ins. Co. of N. A.
Meredith T. Holt, Edmund E. Wood-ley, Lake Charles, La., for Kellog.
A. Lane Plauche, Lake Charles, La., for Transformer.
James J. Davidson, Jr., Robert M. Ma-hony, Lafayette, La., for appellees.
Reginald W. Farrar, Jr., Lake Charles, La., for Westinghouse Elec. Corp. and Liberty Mutual Ins. Co.
Before THORNBERRY, AINS-WORTH and RONEY, Circuit Judges.
RONEY, Circuit Judge:
Conversations between a juror and the defendant insurance company’s representative during trial recess require this jury verdict to be set aside under United States v. Barfield, 359 F.2d 120 (5th Cir. 1966), unless the District Court was correct in holding that the evidence was insufficient to present a jury question. Holding that there was sufficient evidence for a jury issue, we reverse.
Joseph D. Leger was fatally burned on November 6, 1969, when a large high voltage switch manufactured by Westinghouse Electric Corporation exploded at the Cities Service Oil Company Refinery in Lake Charles, Louisiana, where he was employed by Sline Industrial Painters.
In this diversity action for wrongful death against Westinghouse and its insurer, the jury found no defect in the design of the switch and no negligence on the part of Westinghouse which was a proximate cause of Leger’s death.
On two or three occasions during the lengthy trial, however, a representative of Liberty Mutual Insurance Company conversed with a juror about the weather, antiques, and the insurance man’s father’s retirement. One conversation, in the coffee room, lasted some twenty-five minutes. The trial court denied plaintiffs’ motion to have the juror removed and replaced with an alternate juror on the basis that the subjects of the conversations apparently did not concern the case.
After the adverse jury verdict, plaintiffs filed motions for new trial and judgment notwithstanding the verdict based on several alleged errors, including the two involved in this appeal.
Although it thought the juror’s conversations harmless, the District Court, 54 F.R.D. 574, stated that, under United States v. Barfield, supra, it would grant a new trial unless it were clear that there was no substantial evidence which could have supported a contrary verdict. After further consideration, the Court concluded that there was insufficient evidence to support a verdict for plaintiffs and a new trial would be useless.
Plaintiffs’ multiple theory of recovery was comprised of the Louisiana doctrine of res ipsa loquitur-, Westinghouse’s negligence in manufacturing, failing to warn, and failing to instruct properly as to operation and maintenance; and strict products liability.
The evidence showed that Joseph Leger, a painter, was preparing'to work inside a transformer substation when the high voltage switch exploded and he was fatally burned by flaming oily material. The exact cause of the explosion could not be proved. One primary expert witness was called by each side, and several consultants gave peripheral testimony. Plaintiffs’ principal witness, a well qualified consulting engineer, pointed out several design weaknesses, about which the manufacturer should have provided warning. He explained that any of several technical external factors could have triggered one of these defects and caused the accident.
Westinghouse’s senior design engineer, although claiming that the devices were not defective, admitted in his testimony that the alleged weaknesses could have been avoided and that the equipment’s instructions did not warn of the dangers which could cause failure. The device’s twenty-six years of usage notwithstanding, no expert contended that the accident resulted from normal usage, except that natural factors, such as moisture and vibrations, likely triggered the flaw.
In considering the sufficiency of the evidence, we must consider all the evidence “in the light and with all reasonable inferences most favorable to the party opposed to the motion.” Boeing v. Shipman, 411 F.2d 365 (5th Cir. 1969). The explanation of the accident posed by plaintiffs’ expert — design defects, inadequate operation and maintenance instructions, triggering by natural, physical factors — is not implausible. The competence and credibility of the witnesses were challenged. The evidence was of “such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might [have reached] . . . different conclusions,” Boeing v. Shipman, supra, at 365, and the evidence, therefore, was sufficent to go to the jury.
Having found a jury issue, we agree with the District Court that this case is controlled by United States v. Barfield, supra, and that a new trial is required.
In Barfield, an action for federal income tax refund, this Court held that the elevator conversations between the president of the corporate taxpayer and the jurors about family relationships created such inherent harm that a new trial was necessary. Although' it was alleged that no harm was done, the Court reasoned that
[o]ur system of trial by jury presupposes that the jurors be accorded a virtual vacuum wherein they are exposed only to those matters which the presiding judge deems proper for their consideration. This protection and safeguard must remain inviolate if trial by jury is to remain a viable aspect of our system of jurisprudence. Any conduct which gives rise to an appearance of evil must be scrupulously avoided.
359 F.2d at 124.
In the case at bar, the exchanges between the juror and the litigants’ representative were deliberate conversations, not inadvertent exchanges or greetings. The insurance man was not a novice at personal injury litigation, and his failure to terminate the conversations immediately evidences his inclination to identify himself to the juror. Although their exchange did not broach upon the litigation, their discussion of common interests constituted the sort of personal involvement prohibited by Barfield, where the conversation was even more public than those in question. Barfield teaches that the harm is inherent in the deliberate contact or communication between juror and litigant.
This result necessarily requires the vacating of the ordered dismissal of the other defendants inasmuch as that order was based on the exoneration of Westinghouse.
Vacated, reversed and remanded.
Question: This question concerns the second 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_state
|
15
|
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".
BOWLES, Price Adm’r, v. INDIANAPOLIS GLOVE CO.
No. 8692.
Circuit Court of Appeals, Seventh Circuit.
Aug. 3, 1945.
Rehearing Denied Aug. 28, 1945.
Fleming James, Jr., Director, Litigation Division, Albert M. Dreyer, Atty., O.P.A., Thomas I. Emerson, Deputy Adm’r for Enforcement, and Abraham Glasser, Sp. Appellate Atty., O.P.A., all of Washington, D. C., and John E. Scott, O.P.A., of Indianapolis, Ind., for appellant.
William H. Thompson, Perry E. O’Neal, Patrick J. Smith, and Russell J. Ryan, Jr., all of Indianapolis, Ind., for appellee.
Before SPARKS, MAJOR, and KER-NER, Circuit Judges.
SPARKS, Circuit Judge.
The Administrator of the Office of Price Administration appeals from a judgment of the District Court in favor of the defendant. The suit is to recover treble damages for alleged violation of the General Maximum Price Regulation, as amended, by sales of work gloves at prices in excess of those established by the regulation. By joint request of the parties, the court limited the trial on the merits to those issues not involving the measure of damages, reserving that question for determination, if necessary, after determination of the other issues.
The principal question presented on this appeal relates to the construction of the regulation and whether it establishes the maximum price of a commodity at the highest price at which it was actually delivered during March, 1942, if the only deliveries in that month were made under contracts made before March, 1942. The District Court found that it did not, and that under the regulation, defendant’s price list, adopted March 21, 1942, established its maximum prices regardless of whether or not any deliveries of gloves were made thereunder during March.
There is no dispute between the parties over the basic facts, most of which were found by the court in accordance with their stipulation. Defendant is a manufacturer and wholesaler of work gloves, making over 500 different styles or items. March 21, 1942, it published a new price list fixing prices as to all items higher than the prices charged in an earlier price list put out in December, 1941. Approximately 300 styles of gloves were delivered during the month of March, 1942, only at prices established by the December list, or earlier lists, or at prices arrived at by applying the trade differentials to such lists, all of which deliveries were made pursuant to prior commitments. All sales made after Maréh 21, 1942, were for prices established by the price list of that date or in accordance with trade differentials in the case of gloves not listed.
The General Maximum Price Regulation was promulgated April 28, 1942, 7 Fed.Reg. 3153, and became effective May 11, 1942, 7 Fed.Reg. 3156. By section 1499.1, it prohibited any dealing in commodities or services above maximum prices, and by section 1499.2, it established such maximum prices in those cases in which the seller dealt in the same or similar commodities or services during the month of March, 1942, at the highest price charged by the seller during such month for the same commodities or services, or, if no charge was made for the same commodity or service, for the similar commodity or service most nearly like it; it defined such highest price charged as:
“(a) The highest price which the seller charged for a commodity delivered or service supplied by him during March 1942; or
“(b) If the seller made no such delivery or supplied no such service during March 1942 his highest offering price for delivery or supply during that month.”
The parties stipulated that on March 3, 1943, the Administrator notified defendant that the prices which it was then charging and receiving for certain of its work gloves were in excess of the maximum prices established pursuant to the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, § 901 et seq., and that this was the first notice defendant or its officers had received that there was a claim by the OPA that it was violating the regulation in question; that defendant immediately upon receipt of the notice ceased to deliver gloves and did not deliver any at the prices fixed in its March 1942 list until after the receipt of a letter from the OPA March 18, 1943, containing the following paragraph:
“We have sought but not yet obtained a clarification of your position from the Regional and National Offices. We have been advised, however, that information is being assembled by the National Office for use in preparation of a specific regulation establishing maximum prices for work gloves applicable to the entire industry. Believing that the present situation constitutes a serious impediment to the production of goods and materials essential to the prosecution of the war, we see no alternative other than to advise you to proceed with shipments on the basis of your March 21, 1942, list prices pending a definite ruling and decision by the Cleveland or Washington Offices. It is understood that this does not legalize or validate the prices charged from May 11, 1942, the date the General Maximum Price Regulation became effective, up to the present time.” Between March 4 and 18, 1943, defendant made no sales or deliveries of any gloves.
The parties further stipulated that the Administrator does not claim that defendant willfully violated the regulations by its sale of gloves during the times referred to in the complaint, nor does he dispute defendant’s contention that what it did in the sale of its gloves, it did in the belief that it had the right to do under the applicable regulations, and that no claim was asserted prior to March 2, 1943, that defendant was violating such regulations.
Defendant earnestly contends that it at all times, in the sale of its work gloves, complied with the regulation and at no time sold its product at a price in excess of the maximum established by the regulation, and the District Court, by its decision, sustained that contention. Since that decision, however, the Supreme Court has passed upon the question of the construction of a similar regulation with respect to sales made pursuant to prior commitments. In the case, Bowles v. Seminole Rock and Sand Co., 65 S.Ct. 1215, 1218, it upheld the Administrator’s contention with respect to a regulation identical with the one here involved, saying:
“* * * The regulation recognizes the fact that more than one meaning may be attached to the phrase ‘highest price charged during March, 1942.’ The phrase might be construed to mean only the actual charges or sales made during March, regardless of the delivery dates. Or it might refer only to the charges made for actual delivery in March. Whatever may be the variety of meanings, however, rule (i) adopts the highest price which the seller ‘charged * * * for delivery’ of an article during March, 1942. The essential element bringing the rule into operation is thus the fact of delivery during March. If delivery occurs during that period the highest price charged for such delivery becomes the ceiling price. Nothing is said concerning the time when the charge or sale giving rise to the delivery occurs. One may make a sale or charge in October relative to an article which is actually delivered in March and still be said to have ‘charged * * * for delivery * * * during March.’ We can only conclude, therefore, that for purposes of rule (i) the highest price charged for an article delivered during March, 1942, is the seller’s ceiling price regardless of the time when the sale or charge is made.
“This conclusion is further borne out by the fact that rule (ii) becomes applicable only where ‘the seller made no such delivery during March, 1942,’ as contemplated by rule (i). The absence of a delivery, rather than the absence of bodi a charge and a delivery during March, is necessary to make rule (i) ineffective, thereby indicating that the factor of delivery is the essence of rule (i). * * *”
We think this decision of the Supreme Court conclusively establishes the rule that the seller’s maximum price must be determined by his highest price charged for goods actually delivered during the basic month regardless of whether or not such deliveries were pursuant to prior commitments, and that he is entitled to use a March price list only as to those items actually delivered thereunder or of which there were no deliveries during the month. Under this rule, defendant’s prices, fixed by its March list as to over 300 items of which it made deliveries in March only under its December list exceeded the maximum established by the General Maximum Price Regulation, hence were a violation of the regulation. In considering the case of Bowles v. Good Luck Glove Co., 7 Cir., 143 F.2d 579, we were of the opinion that the regulation was susceptible of a different interpretation. The decision of the Supreme Court in the Seminole case, supra, has indicated the error of our earlier decision.
Defendant further contends that even if it be held that its prices violated the regulation, it is not liable for such violation for the following reasons:
1. Because in the sale and delivery of its gloves it acted in entire good faith and in the belief that such sales and deliveries were made in pursuance of the applicable regulations;
2. Because the Administrator is not entitled to recover damages, having sustained no damages; and,
3. Because, if the action be one for penalty, such penalty is so excessive and unreasonable that its imposition would deprive defendant of its property without due process of law;
4. Because § 205(e) of the Emergency Price Control Act, on which this action is based, is so indefinite as to the circumstances under which such action may be brought by the Administrator that it is insusceptible of enforcement;
5. Because the defendant has never had ample and reasonable opportunity to contest the validity of the regulation as here construed by the Administrator, in violation of the 5th Amendment to the Constitution ;
6. Because the Administrator and the United States are estopped to assert defendant’s liability for any sales made during the period of time in which they, by their conduct, induced it to sell its gloves at the prices now contended to be in error of law.
With respect to the first defense, good faith, it must be noted that contrary to defendant’s contention, that does not constitute a total defense to a civil action brought by the Administrator. The regulation lays down a specific mandate for establishing maximum prices, and deviation therefrom cannot be called action pursuant thereto under the terms of § 205(d), 50 U.S.C.A. Appendix, § 925(d), upon which defendant relies. In the case, Bowles v. Hasting, 146 F.2d 94, 95, the Court of Appeals for the Fifth Circuit, reviewing a decision of a District Court denying damages for violations of price orders and regulations on a finding that such violations were not willful, said, “Wilfulness in violation is made a necessary ingredient for criminal punishment under Section 265(b). It is not made necessary in the civil suit. When an excess in price is charged the damage is done, and the excess must be repaid, tripled in order to prevent recurrence. The court has no discretion, as it has with reference to the grant of an injunction, to withhold the damages.”
To the same effect is Bowles v. Franceschini, 145 F.2d 510, 512, where the Court of Appeals for the First Circuit said, “From the inclusion of the word ‘willfully’ in § 205(b), which provides for criminal penalties, and its omission in §, 205(e), we can reasonably infer that Congress intended to omit the word ‘willfully’' from the latter section and that, therefore, good faith is immaterial. That Congress could make use of ‘good faith’ as a defense when it wanted to appears in § 205(d) which provides for no liability ‘in respect of anything done or omitted to be done in good faith pursuant to * * * any regulation, order, price schedule * The purpose of this section is to protect those who act ‘pursuant to’ the provisions-of, or regulations under the Act as distinguished from those who ‘violate’ it. It does not appear that the sales made in good’ faith in the instant case were made ‘pursuant to’ any provision or regulation under the Act. * * *” See also Bowles v. American Stores, 78 U.S.App.D.C. 238, 139 F.2d 377, certiorari denied, 322 U.S. 730, 64 S.Ct. 947, 88 L.Ed. 1565.
As to defendant’s second and third' contentions relating to the right of the Administrator to bring the action for damages in the absence of a showing of actual, damage, or for penalty because of the ex-cessiveness of such penalty, similar contentions were argued in Speten v. Bowles, 8 Cir., 146 F.2d 602, 604, certiorari denied 65 S.Ct. 1023. There the Court of Appeals-for the Eighth Circuit said, “It has, however, been so long recognized, as no longer to be an open question, that a congressional provision for a reasonable and measured' recovery in favor of the United States, directly or through one of its agencies, as a. civil penalty or as remedial damages, for violation of a statute involving the public interest, is not within the prohibition of' the Fifth Amendment.”
As to the charge that the section-under which the action was brought is so-vague and indefinite as to the circumstances under which the Administrator-may sue that it is insusceptible of enforcement, this court has recently passed on the-question, finding no difficulty in determining the circumstances under which he may-bring his action. See Bowles v. Rogers, et al., 7 Cir., 149 F.2d 1010. See also Bowles v. Seminole Rock & Sand Co., 5 Cir., 145 F.2d 482, reversed on other grounds, 65 S.Ct. 1215.
We cannot agree with defendant’s •contention that it has had no opportunity to •contest the validity of the regulation as "here construed hy the Administrator. Section 203 of the Emergency Price Control Act, as amended June 30, 1944, 50 U.S.C.A.Appendix, § 923, provides for the procedure for filing protests against any regulation, order or price schedule dt any time after issuance or effective date thereof and for disposition of such protests by the Administrator. Hence it is still within appellee’s power to make its protest to the Administrator, and, if denied, under the provision of § 204, 50 U.S.C.A.Appendix, § 924, it may have such ruling reviewed by the Emergency Court of Appeals, which alone has authority to pass upon the question of constitutionality or statutory validity of regulations. As to this, the Supreme Court said in the Seminole case, supra, “We do not, of course, reach any ■question here as to the constitutionality or statutory validity of the regulation as we have construed it, matters that must in the first instance be presented to the Emergency Court of Appeals. * * * Nor are we here concerned with any possible hardship that the enforcement of the 60-•cent price ceiling may impose on respondent. Adequate avenues for relief from hardship are open to respondent * *
Defendant’s last contention is of •estoppel. It bases this argument on the •conduct of the Administrator in inducing it, for a part of the period complained of, to sell its gloves at prices now charged to violate the law. A similar argument was presented to the Emergency Court of Appeals in the case, Wells Lamont Corporation v. Bowles, 149 F.2d 364, 367. The court, speaking through Judge Lindley, said, “It must be presumed that complainant was advised of the procedure it was required to follow in order to obtain an official interpretation upon which it could properly rely. And, since it failed to comply with the prescribed method, it is not entitled to rely upon unofficial oral advice given by subordinate officials in the Office of Price Administration. At first blush, this may seem harsh but, obviously, the Administrator can not be bound by various oral interpretations which happen to be made by his hundreds, perhaps thousands, of employees, in violation of published regulations. He has prescribed a reasonable procedure by which persons subject to the regulations may obtain official interpretations, by which all will be bound. Complainant is not entitled to rely on an unofficial interpretation.” That part of the advice relied upon by defendant in the case at bar to sustain its charges of estoppel was in writing makes it no more binding upon the Administrator than the oral advice in the Wells case.
We are convinced that under the decision of the Seminole case and the other authorities cited, the District Court was in error in holding that the defendant was not liable for the damages claimed by the Administrator. Since the cause must be remanded for the purpose of trial on the issue of damages, we make one further observation. As in the Speten case, supra, shortly after entry of the judgment here, Congress amended section 205(e) of the Act to provide that the seller’s liability should be “whichever of the following sums is the greater: (1) Such amount not more than three times the amount of the overcharge, or the overcharges, upo:: which the action is based as the court in its discretion. may determine, or (2) an amount not less than $25 nor more than $50, as the court in its discretion may determine : Provided, however, That such amount shall be the amount of the overcharge or overcharges or $25, whichever is greater, if the defendant proves that the violation of the regulation, order, or price schedule in question was neither wilful nor the result of failure to take practicable precautions against the occurrence of the violation.” This amendment was made applicable to proceedings pending on the date of enactment as Well as to proceedings instituted thereafter. We agree with the court in the Speten case that the proceeding was pending at the date of the enactment of the amendment, hence that, upon the further proceedings which must follow in the cause, defendant is entitled to introduce any pertinent evidence to indicate that it did not fail to take practicable precautions. The parties have already stipulated and the court found that the violations were not wilful.
Judgment reversed and cause remanded for further proceedings.
“No person shall be held liable for damages or penalties in any Federal, State, or Territorial court, on any grounds for or in respect of anything done or omitted to be done in good faith pursuant to any provision of this Act or any regulation, order, price schedule, requirement, or agreement thereunder, or under any price schedule of the Administrator of the Office of Price Administration or of the Administrator * * * notwithstanding that subsequently such provision, regulation, order, price schedule, requirement, or agreement may be modified, rescinded,, or determined to be invalid. * * * ”
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
INTERNATIONAL BASIC ECONOMY CORPORATION, Defendant, Appellant, v. Luis BLANCO LUGO, Plaintiff, Appellee.
No. 5519.
United States Court of Appeals First Circuit.
May 21, 1959.
Jose L. Novas, Hartzell, Fernandez & Novas, San Juan, P. R., and Herrick, Smith, Donald, Farley & Ketchum, Boston, Mass., for appellant.
Francisco Ponsa Feliu and Felix Ochoteco, Jr., San Juan, P. R., for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
PER CURIAM.
This case is now before us upon a motion by appellant having to do with the record on appeal to be certified by the Clerk of the Supreme Court of Puerto Rico.
On August 31, 1956, Luis Blanco Lugo filed in the Superior Court of Puerto Rico, San Juan Part, a complaint alleging that the plaintiff, at the instance and on behalf of the defendants, had laid out certain sums of money in the purchase of various credits against Balet & Rodriguez, Inc., and that the defendants had refused to reimburse the plaintiff for the sums so advanced. On September 3, 1958, the Superior Court entered judgment for the plaintiff in this proceeding.
Not every final judgment by the Superior Court is appealable as a matter of right to the Supreme Court of Puerto Rico. Law No. 115, enacted by the legislature of Puerto Rico on June 26, 1958, amended the Judiciary Act of Puerto Rico so as to provide in part as follows (tit. 4, § 37, L.P.R.A.):
“(a) Except as provided in clause (d) of this section, final judgments rendered by the Superior Court in civil eases involving or deciding a substantial constitutional question under the Constitution of the United States or the Constitution of Puerto Rico, and final judgments in criminal cases originated in the Superior Court, shall be appealable to the Supreme Court. * * *
“(b) Any other final judgment of the Superior Court may, on request of the party aggrieved, be reviewable by the Supreme Court, by way of certiorari issued at the discretion of the court. * * *
“(c) The Supreme Court of Puerto Rico may, in the exercise of its discretion, issue a writ of certification to bring forthwith before it and to hear and resolve any case pending on appeal or review pending before the Superior Court, if it deems that the public importance thereof justifies a deviation from the regular procedure and a direct adjudication by the Supreme Court. * * *
“(d) Judgments rendered by the Superior Court in appeals coming from the District Court and in proceedings for review, based on the record of the proceedings had at the administrative level, or by way of trial de novo, of the rulings, orders or resolutions of administrative organizations, may be reviewed by the Supreme Court by way of certiorari to be issued at its discretion, and not otherwise.”
We have no reason to doubt the competence of the legislature thus to regulate review in the Supreme Court of Puerto Rico of judgments of the lower insular courts. This is so, even though the Act of June 26, 1958, may have had an unintended effect upon review by the Court of Appeals for the First Circuit and by the Supreme Court of the United States of cases decided by the Superior Court of Puerto Rico. If such effect has been accomplished, it can only be by virtue of inadequate draftsmanship by the Congress in 28 U.S.C. §§ 1293 and 1294, under which the Court of Appeals for the First Circuit is vested only with jurisdiction to review final decisions of the Supreme Court of Puerto Rico. This jurisdictional language is to be contrasted with that of 28 U.S.C. § 1257, under which the Supreme Court of the United States is given jurisdiction to review, by appeal or by certiorari, final judgments or decrees “rendered by the highest court of a State in which a decision could be had”. Compare also 28 U.S.C. § 1252, under which any party may appeal to the Supreme Court of the United States from an interlocutory or final judgment of any court of record in Puerto Rico holding an Act of Congress unconstitutional in any civil action.
When the Superior Court on September 3, 1958, entered its judgment against the defendants in this case, a review in the Supreme Court of Puerto Rico was sought by the discretionary route. On October 2, 1958, the corporate co-defendant filed in the Supreme Court of Puerto Rico a petition for review of the judgment of the Superior Court. Attached to the petition for review were (1) a copy of the amended complaint; (2) a copy of the answer thereto, and (3) the findings of fact and conclusions of law of the Superior Court judge. Luis Blanco Lugo, as the winning party below, filed an opposition to this petition for review, and attached thereto a transcript of his own direct testimony in the Superior Court and the deposition of an officer of the corporate defendant. On November 10, 1958, the Supreme Court of Puerto Rico entered a simple order denying the petition for review (“no ha lugar”). A motion for reconsideration, filed with some exhibits on November 20, 1958, was denied by the Supreme Court on December 5, 1958. On December 9, 1958, a notice of appeal to this court from the judgment of the Supreme Court was filed.
The pending motion by appellant seeks to have added to the material hereinbefore enumerated, as part of the record on appeal, some documents and papers which were never before the Supreme Court of Puerto Rico. The motion is that this court enter an order “directing the Clerk of the Supreme Court of Puerto Rico to cause to be prepared a transcript of the proceedings in this case both before the Superior Court of Puerto Rico, San Juan Section, and before the Supreme Court of Puerto Rico, and to have such record translated and filed with this Court.”
We think that this motion must be denied. Assuming for the moment, but not deciding, that 28 U.S.C. §§ 1293 and 1294 give us appellate jurisdiction to review decisions of the highest court in Puerto Rico in which a review could be had, the fact of the matter is that appellant has not sought to appeal from the judgment of the Superior Court of Puerto Rico. The only notice of appeal filed by appellant in this case, that of December 9, 1958, purports to take an appeal from the final decision of the Supreme Court of Puerto Rico dated November 10, 1958, denying the discretionary petition for review. There is no doubt that this judicial action by the Supreme Court of Puerto Rico is a “final decision”, appealable to this court. See Jimenez v. Jones, 1 Cir., 1952, 195 F.2d 159, certiorari denied, Jimenez-Melendez v. Jones, 1952, 344 U.S. 840, 73 S.Ct. 52, 97 L.Ed. 654. But since the review sought in the Supreme Court of Puerto Rico was available only in its discretion, that court’s action in denying the petition could be set aside by us only upon a finding of an abuse of discretion, and of course, in passing upon whether there was such abuse of discretion, we can only look to the record of the case as it was presented to the Supreme Court of Puerto Rico.
An order will be entered denying appellant’s motion looking to enlargement of the record on appeal.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_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.
ANDERSON et al. v. ÆTNA LIFE INS. CO. OF HARTFORD, CONN.
No. 4101.
Circuit Court of Appeals, Fourth Circuit.
April 6, 1937.
James E. Leppard, of Chesterfield, S. C. (George K. Laney, of Chesterfield, S. C., and C. P. Laney and P. A. Murray, Jr., both of Cheraw, S. C., on the brief), for appellants.
Henry E. Davis, of Florence, S. C., for appellee.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
PARKER, Circuit Judge.
This is a suit by an insurance company asking relief under the Federal Declaratory Judgment Act of June 14, 1934, 48 Stat. 955, Jud.Code § 274d, as amended by Act Aug. 30, 1935, 28 U.S.C.A. § 400. From a decree holding that a group insurance policy had lapsed and that the rights of defendants insured thereunder had ceased and determined, the defendants have appealed. The question presented by the appeal is the jurisdiction of the court to entertain the suit, no question being raised as to the decision of the court if its jurisdiction is conceded. The facts out of which the case arises and the proceedings had in the court below are as follows:
In the year 1925 the company issued to J. L. Anderson of Cheraw, S. C., a policy of group insurance, covering, in varying amounts, the employees in a veneer plant which he operated. This policy provided for monthly payment of premiums by the employer, with provision for annual renewal at his option, and with the right on the part of the company at the end of each year to establish new premium rates for its continuance. It provided insurance against death and against total and permanent disability; and the employees were furnished certificates setting forth the terms of the insurance and that it was subject to cancellation upon the discontinuance of the term policy. In August, 1933, toward the end of the insurance year, the company notified the employer that, if the policy were continued, the premiums would be raised very considerably, and suggested that a new type of policy be taken in lieu thereof covering death but not disability. This suggestion was accepted, premiums were paid on the old policy which carried it in force to November 16, 1933, and a new policy was issued as of that date.
When the employees were offered certificates under the new policy a number of them became dissatisfied because of the lack of disability provision, and in March 1935, over a year later, eleven of them instituted actions under the old policy in the court of common pleas of Chesterfield county, S. C., asking actual damages in the total amount for which they were insured thereunder and punitive damages in the sum of $10,000 each. The company removed these suits into the court below and at the same time instituted this suit against the employer and all of the employees covered by the old policy, setting forth the facts as above stated, asking a declaratory judgment to the effect that the coverage of the old policy had terminated on December 17, 1933, thirty-one days after the date to which premiums were paid, and for general relief in the premises. Following this, the defendants whose actions had been removed from the state court into the court below, on September 9, 1935, were allowed to take nonsuits therein; and these judgments of nonsuit were affirmed by this court. See Aetna Life Ins. Co. v. Wilson et al. (C,C.A.4th) 84 F.(2d) 330.
The judgments of nonsuit left no litigation pending between the company and the persons insured under the policy except this suit for the declaratory judgment; but in January, 1936, three other of the defendants herein commenced actions in the court of common pleas of Chesterfield county, asking damages of the company on the ground that it had fraudulently canceled or attempted to cancel the old policy and fixing the claims for damages at sums not within the federal jurisdiction. On application of the company, the judge below granted an interlocutory injunction in this suit restraining the defendants from prosecuting those actions pending the hearing herein. No appeal was taken from the order granting the interlocutory injunction which, of course, expired with the entry of final decree.
When the case came on for final hearing, the judge below found the facts with regard to the termination of the old policy and held that it ceased to be effective on November 16, 1933, and that the rights of the certificate holders thereunder ceased as to causes of action that did not accrue prior to that date. He denied a motion to dismiss the bill of complaint for lack of jurisdiction and entered a decree in the following terms: “Ordered, adjudged and decreed that the group policy of insurance No. 2901, issued to J. L. Anderson, be, and it hereby is, declared to have been discontinued, to have lapsed, and to have ceased to be effective, as of November 16, 1933, and that all rights of the answering defendants, under both the said master, policy and each of the certificates issued to them or to the intestate of any of them, ceased and determined with the termination of said master policy; that the plaintiff is not liable to any of said answering defendants either under the master policy or under the certificates issued to them thereunder on any cause of action that did not accrue pri- or to the time that said master policy ceased to be effective; and that said master policy and said certificates of insurance issued thereunder be, and they hereby are, cancelled and declared to be void and- of no effect as of the date November 16, 1933.”
As the eleven actions originally instituted have been nonsuited, we need not consider what action might have been taken by the court below with respect to them or what effect their pendency might have had on the procedure in this cause if the nonsuits had not been taken. Cf. Winslow Wright & Co. v. McKnight, 112 S.C. 551, 100 S.E. 155; Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226, 24 A.L.R. 1077. And we need not consider the right of the court below, under the doctrine of Brown v. Pacific Mutual Life Ins. Co. (C.C.A.) 62 F.(2d) 711, to enjoin the prosecution of the three suits subsequently instituted; for, as heretofore stated, the interlocutory injunction expired when final decree was entered and that decree, which granted no injunction of any sort, is the only matter brought up by appeal. It is clear that the institution of the suits last named could not affect the jurisdiction of the court with respect to the suit for declaratory judgment previously instituted, even though it would seem that the court in a suit to obtain a declaratory judgment might, as a matter of discretion, delay proceedings to await the termination of an action at law subsequently instituted. Cf. American Life Ins. Co. v. Stewart, 57 S.Ct. 377, 81 L.Ed. —.
The question, therefore, is narrowed to the jurisdiction of the court to entertain a suit for a declaratory judgment with respect to the liability of á plaintiff insurance company under a group insurance policy, when those insured by thé policy are asserting liability of the company under it and the company is denying liability on the ground that the coverage of the policy had been properly terminated before the asserted liability arose. Such a suit involves a real and substantial controversy admitting of relief through a decree of specific character; the elements of federal jurisdiction,' diversity of citizenship and amount in controversy, are admittedly present; and the case falls squarely within the language of the statute, 28 U.S.C.A. § 400, which provides: “(1) In cases of actual controversy except with respect to Federal taxes the courts of the United States shall have power upon petition, declaration, complaint, or other appropriate pleadings to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed, and such declaration shall have the force and effect of. a final judgment or decree and be reviewable as such.”
We think that irrespective of whether the suit would have been cognizable in equity or whether plaintiff would have had an adequate remedy at law in defending actions at law - instituted by the defendants, the remedy provided by the statute was available to it, Ætna Life Ins. Co. v. Haworth, 57 S.Ct. 461, 464, 81 L.Ed. -; Gully v. Interstate Natural Gas Co. (C.C.A.5th) 82 F.(2d) 145, 149; Travelers Ins. Co. v. Helmer (D.C.) 15 F.Supp. 355, 356; New York Life Ins. Co. v. London (D.C.) 15 F.Supp. 586. As said by the Supreme Court in the Ha-worth Case, which was a suit brought to secure a declaratory judgment that policies of life and disability insurance had lapsed for nonpayment of premiums: “There is here a dispute between parties who face each* other in an adversary proceeding. The dispute relates to legal rights and obligations arising from the contracts of insurance. The dispute is definite and concrete, not hypothetical or abstract. Prior to this suit, the parties had taken adverse positions with respect to their existing obligations. Their contentions concerned the disability benefits which were to be payable upon prescribed conditions. On' the one side, the insured claimed that he had become totally and permanently disabled and hence was relieved of the obligation to continue the payment of premiums and was entitled to the stipulated disability benefits and to the continuance of the policies in force. The insured presented this claim formally, as required by the policies. It was a claim of a present, specific right. On the other side, the company made an equally definite claim that the alleged basic fact did not exist, that the insured was not totally and permanently disabled and had not been relieved of the duty to continue the payment of premiums, that in consequence the policies had lapsed, and that the company was thus freed from its obligation either to pay disability benefits or to continue the insurance in force. Such a dispute is manifestly susceptible of judicial determination. It calls, not for an advisory opinion upon a hypothetical basis, but for an adjudication of present right upon established facts. * * * If the insured had brought suit to recover the disability benefits currently payable under two of the policies there would have been no question that the controversy was of a justiciable nature, whether or not the amount involved would have permitted its determination in a federal court. Again, on repudiation by the insurer of liability in such a case and insistence by the insured that the repudiation was unjustified because of his disability, the insured would have ‘such an interest in the preservation of the contracts that he might maintain a suit in equity to declare them still in being.’ * * * But the character of the controversy and of the issue to be determined is essentially the same whether it is presented by the insured or by the insurer. Whether the District Court may entertain such a suit by the insurer, when the controversy as here is between citizens of different States or otherwise is within the range of the federal judicial power, is for the Congress to determine. It is the nature of the controversy, not the metlw od of its presentation or the particular party who presents it, that is determinative.”
No exception was taken as to the manner in which the case was heard in the court below, probably because there was no dispute as to the facts, the objections being directed entirely to the jurisdiction of the court. We need not decide, therefore, whether it should have been heard at law, instead of before the judge as a suit in equity. American Mills Co. v. American Surety Co., 260 U.S. 360, 43 S.Ct. 149, 67 L.Ed. 306; Reynes v. Dumont, 130 U.S. 354, 395, 9 S.Ct. 486, 32 L.Ed. 934.
For the reasons stated, the decree appealed from will be affirmed.
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:
|
sc_partywinning
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
UNITED STATES v. MORRISON et al.
No. 99-5.
Argued January 11, 2000
Decided May 15, 2000
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nor, ScaXjIA, Kennedy, and Thomas, JJ., joined. Thomas, J, filed a concurring opinion, post, p. 627. Souter, J, filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ, joined, post, p. 628. Breyer, J, filed a dissenting opinion, in which Stevens, J, joined, and in which Souter and Ginsburg, JJ, joined as to Part I-A, post, p. 655.
Solicitor General Waxman argued the cause for the United States in No. 99-5. With him on the briefs were Acting Assistant Attorney General Ogden, Deputy Solicitor General Underwood, Barbara McDowell, Mark B. Stern, Alisa B. Klein, and Anne Murphy. Julie Goldsheid argued the cause for petitioner in No. 99-29. With her on the briefs were Martha F. Davis, Eileen N. Wagner, Carter G. Phillips, Richard D. Bernstein, Katherine L. Adams, Jacqueline Ger-son Cooper, and Paul A. Hemmersbaugh.
Michael E. Rosman argued the cause for respondents in both cases. With him on the brief for respondent Morrison were Hans F. Bader and W. David Paxton. Joseph Graham Painter, Jr., filed a brief for respondent Crawford.
Together with No. 99-29, Brzonkala v. Morrison et al., also on certio-rari to the same court.
Briefs of amici curiae urging reversal were filed for the State of Arizona et al. by Janet Napolitano, Attorney General of Arizona, Eliot Spitzer, Attorney General of New York, Preeta D. Bansal, Solicitor General, Jennifer K. Brown, Assistant Attorney General, and Paula S. Bick-ett, and by the Attorneys General for their respective jurisdictions as follows: 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, Thurbert E. Baker of Georgia, Earl I. Anzai of Hawaii, James E. Ryan of Illinois, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Albert Benjamin “Ben” Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, J Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, Patricia A, Madrid of New Mexico, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Jose A. Fuentes Agostini of Puerto Rico, Sheldon Whitehouse of Rhode Island, Paul G. Summers of Tennessee, Jan Graham of Utah, William H. Sorrell of Vermont, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin; for the Association of Trial Lawyers of America by Jeffrey Robert White; for AYUDA, Inc., et al. by Laura A. Foggan and Clifford M. Sloan; for the Bar of the City of New York by Leon Friedman, Ronald J. Tabak, Louis A Craco, Jr., Greg Harris, and James F. Parver; for Equal Rights Advocates et al. by David S. Ettinger, Lisa R. Jaskol, and Mary-Christine Sungaila; for International Law Scholars and Human Rights Experts by Peter Weiss and Rhonda Copelon; for the Lawyers’ Committee for Civil Rights Under Law et al. by Norman Redlich, Mare D. Stern, Daniel F. Kolb, Barbara Arnwine, Thomas J. Henderson, Jeffrey Sinensky, Steven Freeman, Melvin Shralow, Eliot Mincberg, and Nadine Taub; for Law Professors by Bruce Ackerman, Vicki C. Jackson, and Judith Resnik; for the National Network to End Domestic Violence et al. by Bruce D. Sokler; and for Joseph R. Biden, Jr., pro se.
Briefs of amici curiae urging affirmance were filed for the State of Alabama by Bill Pryor, Attorney General, John J. Park, Jr., Assistant Attorney General, and Jeffrey S. Sutton; for the Institute for Justice et al. by Richard A Epstein, William H. Mellor, Clint Bolick, Scott G. Bullock, Timothy Lynch, and Robert A Levy; for the Claremont Institute Center for Constitutional Jurisprudence by Edwin Meese III; for the Clarendon Foundation by Jay S. By bee and Ronald D. Maines; for the Eagle Forum Education & Legal Defense Fund by Erik S. Jaffe and Phyllis Schlafiy; for the Independent Women’s Forum by Anita K. Blair, E. Duncan Getchell, Jr., J. William Boland, and Robert L. Hodges; for the National Association of Criminal Defense Lawyers by Theodore M. Cooperstein and Lisa Kemler; for the Pacific Legal Foundation by Anne M. Hayes and M. Reed Hopper; for the Women’s Freedom Network by Robert L. King; and for Rita Gluzman by Alan E. Untereiner.
Michael P. Farris filed a brief for the Center for the Original Intent of the Constitution as amicus curiae.
Chief Justice Rehnquist
delivered the opinion of the Court.
In these cases we consider the constitutionality of 42 U. S. C. § 13981, which provides a federal civil remedy for the victims of gender-motivated violence. The United States Court of Appeals for the Fourth Circuit, sitting en banc, struck down §13981 because it concluded that Congress lacked constitutional authority to enact the section’s civil remedy. Believing that these cases are controlled by our decisions in United States v. Lopez, 514 U. S. 549 (1995), United States v. Harris, 106 U. S. 629 (1883), and the Civil Rights Cases, 109 U. S. 3 (1888), we affirm.
h — 1
Petitioner Christy Brzonkala enrolled at Virginia Polytechnic Institute (Virginia Tech) in the fall of 1994. In September of that year, Brzonkala met respondents Antonio Morrison and James Crawford, who were both students at Virginia Tech and members of its varsity football team. Brzonkala alleges that, within 30 minutes of meeting Morrison and Crawford, they assaulted and repeatedly raped her. After the attack, Morrison allegedly told Brzonkala, “You better not have any... diseases.” Complaint ¶ 22. In the months following the rape, Morrison also allegedly announced in the dormitory’s dining room that he “like[d] to get girls drunk and...,” Id., ¶ 31. The omitted portions, quoted verbatim in the briefs on file with this Court, consist of boasting, debased remarks about what Morrison would do to women, vulgar remarks that cannot fail to shock and offend.
Brzonkala alleges that this attack caused her to become severely emotionally disturbed and depressed. She sought assistance from a university psychiatrist, who prescribed antidepressant medication. Shortly after the rape Brzon-kala stopped attending classes and withdrew from the university.
In early 1995, Brzonkala filed a complaint against respondents under Virginia Tech’s Sexual Assault Policy. During the school-conducted hearing on her complaint, Morrison admitted having sexual contact with her despite the fact that she had twice told him “no.” After the hearing, Virginia Tech’s Judicial Committee found insufficient evidence to punish Crawford, but found Morrison guilty of sexual assault and sentenced him to immediate suspension for two semesters.
Virginia Tech’s dean of students upheld the judicial committee’s sentence. However, in July 1995, Virginia Tech informed Brzonkala that Morrison intended to initiate a eourt challenge to his conviction under the Sexual Assault Policy. University officials told her that a second hearing would be necessary to remedy the school’s error in prosecuting her complaint under that policy, which had not been widely circulated to students. The university therefore conducted a second hearing under its Abusive Conduct Policy, which was in force prior to the dissemination of the Sexual Assault Policy. Following this second hearing the Judicial Committee again found Morrison guilty and sentenced him to an identical 2-semester suspension. This time, however, the description of Morrison’s offense was, without explanation, changed from “sexual assault” to “using abusive language.”
Morrison appealed his second conviction through the university’s administrative system. On August 21, 1995, Virginia Tech’s senior vice president and provost set aside Morrison’s punishment. She concluded that it was “‘excessive when compared with other cases where there has been a finding of violation of the Abusive Conduct Policy,’ ” Brzonkala v. Virginia Polytechnic Institute and State Univ., 132 F. 3d 950, 955 (CA4 1997). Virginia Teeh did not inform Brzonkala of this decision. After learning from a newspaper that Morrison would be returning to Virginia Tech for the fall 1995 semester, she dropped out of the university.
In December 1995, Brzonkala sued Morrison, Crawford, and Virginia Tech in the United States District Court for the Western District of Virginia. Her complaint alleged that Morrison’s and Crawford’s attack violated § 13981 and that Virginia Tech’s handling of her complaint violated Title IX of the Education Amendments of 1972, 86 Stat. 373-375, 20 U. S. C. §§ 1681-1688. Morrison and Crawford moved to dismiss this complaint on the grounds that it failed to state a claim and that §13981’s civil remedy is unconstitutional. The United States, petitioner in No. 99-5, intervened to defend § 13981’s constitutionality.
The District Court dismissed Brzonkala’s Title IX claims against Virginia Tech for failure to state a claim upon which relief can be granted. See Brzonkala v. Virginia Polytechnic and State Univ., 935 F. Supp. 772 (WD Va. 1996). It then held that Brzonkala’s complaint stated a claim against Morrison and Crawford under §13981, but dismissed the complaint because it concluded that Congress lacked authority to enact the section under either the Commerce Clause or § 5 of the Fourteenth Amendment. Brzonkala v. Virginia Polytechnic and State Univ., 935 F. Supp. 779 (WD Va. 1996).
A divided panel of the Court of Appeals reversed the District Court, reinstating Brzonkala’s §13981 claim and her Title IX hostile environment claim. Brzonkala v. Virginia Polytechnic and State Univ., 132 F. 3d 949 (CA4 1997). The foil Court of Appeals vacated the panel’s opinion and reheard the case en bane. The en banc court then issued an opinion affirming the District Court’s conclusion that Brzonkala stated a claim under §13981 because her complaint alleged a crime of violence and the allegations of Morrison’s crude and derogatory statements regarding his treatment of women sufficiently indicated that his crime was motivated by gender animus. Nevertheless, the court by a divided vote affirmed the District Court’s conclusion that Congress lacked constitutional authority to enact §13981’s civil remedy. Brzonkala v. Virginia Polytechnic and State Univ., 169 F. 3d 820 (CA4 1999). Because the Court of Appeals invalidated a federal statute on constitutional grounds, we granted certiorari, 527 U. S. 1068 (1999).
Section 13981 was part of the Violence Against Women Act of 1994, § 40302,108 Stat. 1941-1942. It states that “[a]U persons within the United States shall have the right to be free from crimes of violence motivated by gender.” 42 U. S. C. § 13981(b). To enforce that right, subsection (c) declares:
“A person (including a person who acts under color of any statute, ordinance, regulation, custom, or usage of any State) who commits a crime of violence motivated by gender and thus deprives another of the right declared in subsection (b) of this section shall be liable to the party injured, in an action for the recovery of compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate.”
Section 13981 defines a “erim[e] of violence motivated by gender” as “a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim’s gender.” § 13981(d)(1). It also provides that the term “crime of violence” includes any
“(A)... act or series of acts that would constitute a felony against the person or that would constitute a felony against property if the conduct presents a serious risk of physical injury to another, and that would come within the meaning of State or Federal offenses described in section 16 of Title 18, whether or not those acts have actually resulted in criminal charges, prosecution, or conviction and whether or not those acts were committed in the special maritime, territorial, or prison jurisdiction of the United States; and “(B) includes an act or series of acts that would constitute a felony described in subparagraph (A) but for the relationship between the person who takes such action and the individual against whom such action is taken.” § 13981(d)(2).
Further clarifying the broad scope of § 13981’s civil remedy, subsection (e)(2) states that “[njothing in this section requires a prior criminal complaint, prosecution, or conviction to establish the elements of a cause of action under subsection (c) of this section.” And subsection (e)(3) provides a § 13981 litigant with a choice of forums: Federal and state courts “shall have concurrent jurisdiction” over complaints brought under the section.
Although the foregoing language of § 13981 covers a wide swath of criminal conduct, Congress placed some limitations on the section’s federal civil remedy. Subsection (e)(1) states that “[njothing in this section entitles a person to a cause of action under subsection (c) of this section for random acts of violence unrelated to gender or for acts that cannot be demonstrated, by a preponderance of the evidence, to be motivated by gender.” Subsection (e)(4) further states that § 13981 shall not be construed “to confer on the courts of the United States jurisdiction over any State law claim seeking the establishment of a divorce, alimony, equitable distribution of marital property, or child custody decree.”
Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution. “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison, 1 Cranch 137, 176 (1803) (Marshall, C. J.). Congress explicitly identified the sources of federal authority on which it relied in enacting § 13981. It said that a “Federal civil rights cause of action” is established “[pursuant to the affirmative power of Congress... under section 5 of the Fourteenth Amendment to the Constitution, as well as under section 8 of Article I of the Constitution.” 42 U. S. C. § 13981(a). We address Congress’ authority to enact this remedy under each of these constitutional provisions in turn.
II
Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds. See United States v. Lopez, 514 U. S., at 568, 577-578 (Kennedy, J., concurring); United States v. Harris, 106 U. S., at 685. With this presumption of constitutionality in mind, we turn to the question whether §13981 falls within Congress’ power under Article I, § 8, of the Constitution. Brzonkala and the United States rely upon the third clause of the section, which gives Congress power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
As we discussed at length in Lopez, our interpretation of the Commerce Clause has changed as our Nation has developed. See 514 U. S., at 552-557; id., at 568-574 (Kennedy, J., concurring); id., at 584, 598-599 (Thomas, J., concurring). We need not repeat that detailed review of the Commerce Clause’s history here; it suffices to say that, in the years since NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937), Congress has had considerably greater latitude in regulating conduct and transactions under the Commerce Clause than our previous ease law permitted. See Lopez, 514 U. S., at 555-556; id., at 573-574 (Kennedy, J., concurring).
Lopez emphasized, however, that even under our modern, expansive interpretation of the Commerce Clause, Congress’ regulatory authority is not without effective bounds. Id., at 557.
“[Ejven [our] modern-era precedents which have expanded congressional power under the Commerce Clause confirm that this power is subject to outer limits. In Jones & Laughlin Steel, the Court warned that the scope of the interstate commerce power ‘must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.’” Id., at 556-557 (quoting Jones & Laughlin Steel, supra, at 37).
As we observed in Lopez, modern Commerce Clause jurisprudence has “identified three broad categories of activity that Congress may regulate under its commerce power.” 514 U. S., at 558 (citing Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276-277 (1981); Perez v. United States, 402 U. S. 146, 150 (1971)). “First, Congress may regulate the use of the channels of interstate commerce.” 514 U. S., at 558 (citing Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 256 (1964); United States v. Darby, 312 U. S. 100, 114 (1941)). “Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.” 514 U. S., at 558 (citing Shreveport Rate Cases, 234 U. S. 342 (1914); Southern R. Co. v. United States, 222 U. S. 20 (1911); Perez, supra, at 150). “Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce,... 1 e., those activities that substantially affect interstate commerce.” 514 U. S., at 558-559 (citing Jones & Laughlin Steel, supra, at 37).
Petitioners do not contend that these cases fall within either of the first two of these categories of Commerce Clause regulation. They seek to sustain § 13981 as a regulation of activity that substantially affects interstate commerce. Given § 13981’s focus on gender-motivated violence wherever it occurs (rather than violence directed at the in-strumentalities of interstate commerce, interstate markets, or things or persons in interstate commerce), we agree that this is the proper inquiry.
Since Lopez most recently canvassed and clarified our case law governing this third category of Commerce Clause regulation, it provides the proper framework for conducting the required analysis of § 13981. In Lopez, we held that the Gun-Free School Zones Act of 1990,18 U. S. C. § 922(q)(l)(A), which made it a federal crime to knowingly possess a firearm in a school zone, exceeded Congress’ authority under the Commerce Clause. See 514 U. S., at 551. Several significant considerations contributed to our decision.
First, we observed that §922(q) was “a criminal statute that by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” Id., at 561. Reviewing our case law, we noted that “we have upheld a wide variety of congressional Acts regulating intrastate economic activity where we have concluded that the activity substantially affected interstate commerce.” Id., at 559. Although we cited only a few examples, including Wickard v. Filburn, 317 U. S. 111 (1942); Hodel, supra; Perez, supra; Katzenbach v. McClung, 379 U. S. 294 (1964); and Heart of Atlanta Motel, supra, we stated that the pattern of analysis is clear. Lopez, 514 U. S., at 559-560. “Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.” Id., at 560.
Both petitioners and Justice Souter’s dissent downplay the role that the economic nature of the regulated activity plays in our Commerce Clause analysis. But a fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case. See, e. g., id., at 551 (“The Act [does not] regulat[e] a commercial activity”), 560 (“Even Wickard, which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not”), 561 (“Section 922(q) is not an essential part of a larger regulation of economic activity”), 566 (“Admittedly, a determination whether an intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty. But, so long as Congress’ authority is limited to those powers enumerated in the Constitution, and so long as those enumerated powers are interpreted as having judicially enforceable outer limits, congressional legislation under the Commerce Clause always will engender ‘legal uncertainty’ ”), 567 (“The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce”); see also id., at 573-574 (Kennedy, J., concurring) (stating that Lopez did not alter our “practical conception of commercial regulation” and that Congress may “regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy”), 577 (“Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur”), 580 (“[Ujnlike the earlier cases to come before the Court here neither the actors nor their conduct has a commercial character, and neither the purposes nor the design of the statute has an evident commercial nexus. The statute makes the simple possession of a gun within 1,000 feet of the grounds of the school a criminal offense. In a sense any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far” (citation omitted)). Lopez’s review of Commerce Clause case law demonstrates that in those cases where we have sustained federal regulation of intrastate activity based upon the activity’s substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor. See id., at 559-560.
The second consideration that we found important in analyzing §922(q) was that the statute contained “no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.” Id., at 562. Such a jurisdictional element may establish that the enactment is in pursuance of Congress’ regulation of interstate commerce.
Third, we noted that neither § 922(q) “ ‘nor its legislative history contain[s] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone.’ ” Ibid, (quoting Brief for United States, O. T. 1994, No. 93-1260, pp. 5-6). While "Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce,” 514 U. S., at 562 (citing McClung, supra, at 304; Perez, 402 U. S., at 156), the existence of such findings may “enable us to evaluate the legislative judgment that the activity in question substantially affect[s] interstate commerce, even though no such substantial effect [is] visible to the naked eye.” 514 U. S., at 563.
Finally, our decision in Lopez rested in part on the fact that the link between gun possession and a substantial effect on interstate commerce was attenuated. Id., at 563-567. The United States argued that the possession of guns may lead to violent crime, and that violent crime “can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe.” Id., at 563-564 (citation omitted). The Government also argued that the presence of guns at schools poses a threat to the educational process, which in turn threatens to produce a less efficient and productive work force, which will negatively affect national productivity and thus interstate commerce. Ibid.
We rejected these “costs of crime” and “national productivity” arguments because they would permit Congress to “regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce.” Id., at 564. We noted that, under this but-for reasoning:
“Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the[se] theories..., it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.” Ibid.
With these principles underlying our Commerce Clause jurisprudence as reference points, the proper resolution of the present cases is clear. Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature. See, e. g., id., at 559-560, and the cases cited therein.
Like the Gun-Free School Zones Act at issue in Lopez, § 13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’ power to regulate interstate commerce. Although Lopez makes clear that such a jurisdictional element would lend support to the argument that § 13981 is sufficiently tied to interstate commerce, Congress elected to cast § 13981’s remedy over a wider, and more purely intrastate, body of violent crime.
In contrast with the lack of congressional findings that we faced in Lopez, §13981 is supported by numerous findings regarding the serious impact that gender-motivated violence has on victims and their families. See, e. g., H. R. Conf. Rep. No. 103-711, p. 385 (1994); S. Rep. No. 103-138, p. 40 (1993); S. Rep. No. 101-545, p. 33 (1990). But the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. As we stated in Lopez, “ ‘[Sjimply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.’ ” 514 U. S., at 557, n. 2 (quoting Hodel, 452 U. S., at 311 (Rehnquist, J., concurring in judgment)). Rather, “ ‘[w]hether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.’” 514 U. S., at 557, n. 2 (quoting Heart of Atlanta Motel, 379 U. S., at 273 (Black, J., concurring)).
In these cases, Congress’ findings are substantially weakened by the fact that they rely so heavily on a method of reasoning that we have already rejected as unworkable if we are to maintain the Constitution’s enumeration of powers. Congress found that gender-motivated violence affects interstate commerce
“by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved in interstate commerce;... by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products.” H. R. Conf. Rep. No. 103-711, at 385.
Accord, S. Rep. No. 103-138, at 54. Given these findings and petitioners’ arguments, the concern that we expressed in Lopez that Congress might use the Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority seems well founded. See Lopez, supra, at 564. The reasoning that petitioners advance seeks to follow the but-for causal chain from the initial occurrence of violent crime (the suppression of which has always been the prime object of the States’ police power) to every attenuated effect upon interstate commerce. If accepted, petitioners’ reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption. Indeed, if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence since gender-motivated violence, as a subset of all violent crime, is certain to have lesser economic impacts than the larger class of which it is a part.
Petitioners’ reasoning, moreover, will not limit Congress to regulating violence but may, as we suggested in Lopez, be applied equally as well to family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant. Congress may have recognized this specter when it expressly precluded § 13981 from being used in the family law context. See 42 U. S. C. § 13981(e)(4). Under our written Constitution, however, the limitation of congressional authority is not solely a matter of legislative grace. See Lopez, supra, at 575-579 (Kennedy, J., concurring); Marbury, 1 Cranch, at 176-178.
We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local. Lopez, 514 U. S., at 568 (citing Jones & Laughlin Steel, 301 U. S., at 30). In recognizing this fact we preserve one of the few principles that has been consistent since the Clause was adopted. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States. See, e. g., Cohens v. Virginia, 6 Wheat. 264, 426, 428 (1821) (Marshall, C. J.) (stating that Congress “has no general right to punish murder committed within any of the States,” and that it is “clear... that congress cannot punish felonies generally”). Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims. See, e. g., Lopez, 514 U. S., at 566 (“The Constitution... withhold[s] from Congress a plenary police power”); id., at 584-585 (Thomas, J., concurring) (“[W]e always have rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power”), 596-597, and n. 6 (noting that the first Congresses did not enact nationwide punishments for criminal conduct under the Commerce Clause).
III
Because we conclude that the Commerce Clause does not provide Congress with authority to enact § 13981, we address petitioners’ alternative argument that the section’s civil remedy should be upheld as an exercise of Congress’ remedial power under § 5 of the Fourteenth Amendment. As noted above, Congress expressly invoked the Fourteenth Amendment as a source of authority to enact § 13981.
The principles governing an analysis of congressional legislation under §5 are well settled. Section 5 states that Congress may “ 'enforce’ by 'appropriate legislation’ the constitutional guarantee that no State shall deprive any person of 'life, liberty, or property, without due process of law,’ nor deny any person 'equal protection of the laws.’ ” City of Boerne v. Flores, 521 U. S. 507, 517 (1997). Section 5 is “a positive grant of legislative power,” Katzenbach v. Morgan, 384 U. S. 641, 651 (1966), that includes authority to “prohibi[t] conduct which is not itself unconstitutional and [to] intrud[e] into ‘legislative spheres of autonomy previously reserved to the States.’ ” Flores, supra, at 518 (quoting Fitzpatrick v. Bitzer, 427 U. S. 445, 455 (1976)); see also Kimel v. Florida Bd. of Regents, 528 U. S. 62, 81 (2000). However, “[a]s broad as the congressional enforcement power is, it is not unlimited.” Oregon v. Mitchell, 400 U. S. 112, 128 (1970); see also Kimel, supra, at 81. In fact, as we discuss in detail below, several limitations inherent in §5’s text and constitutional context have been recognized since the Fourteenth Amendment was adopted.
Petitioners’ § 5 argument is founded on an assertion that there is pervasive bias in various state justice systems against victims of gender-motivated violence. This assertion is supported by a voluminous congressional record. Specifically, Congress received evidence that many participants in state justice systems are perpetuating an array of erroneous stereotypes and assumptions. Congress concluded that these discriminatory stereotypes often result in insufficient investigation and prosecution of gender-motivated crime, inappropriate focus on the behavior and credibility of the victims of that crime, and unacceptably lenient punishments for those who are actually convicted of gender-motivated violence. See H. R. Conf. Rep. No. 103-711, at 385-386; S. Rep. No. 103-138, at 38, 41-55; S. Rep. No. 102-197, at 33-35, 41, 43-47. Petitioners contend that this bias denies victims of gender-motivated violence the equal protection of the laws and that Congress therefore acted appropriately in enacting a private civil remedy against the perpetrators of gender-motivated violence to both remedy the States' bias and deter future instances of discrimination in the state courts.
As our cases have established, state-sponsored gender discrimination violates equal protection unless it “-‘serves “important governmental objectives and... the discriminatory means employed” are “substantially related to the achievement of those objectives.” ’ ” United States v. Virginia, 518 U. S. 515, 533 (1996) (quoting Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 724 (1982), in turn quoting Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142, 150 (1980)). See also Craig v. Boren, 429 U. S. 190, 198-199 (1976). However, the language and purpose of the Fourteenth Amendment place certain limitations on the manner in which Congress may attack discriminatory conduct. These limitations are necessary to prevent
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
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songer_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).
CASE & COMPANY, INC., Individually and on behalf of those who at the close of trading on January 18, 1973 held future contracts to sell January 1973 soybeans on the Board of Trade of the City of Chicago, Plaintiff-Appellant, v. The BOARD OF TRADE OF the CITY OF CHICAGO et al., Defendants-Appellees.
No. 74-1464.
United States Court of Appeals, Seventh Circuit.
Argued April 25, 1975.
Decided Sept. 12, 1975.
Rehearing and Rehearing En Banc Denied Oct. 30, 1975.
Charles A. Boyle, Thomas R. Meites, Chicago, 111., for plaintiff-appellant.
Philip F. Johnson, Gary M. Elden, Chicago, 111., for defendants-appellees.
Before CUMMINGS, STEVENS and TONE, Circuit Judges.
TONE, Circuit Judge.
This appeal concerns the authority of the governing board of the Board of Trade of the City of Chicago to suspend temporarily a board rule limiting daily price fluctuations in soybean futures contracts. Plaintiff, a trader who was in a “short” position at the time of the rule suspension, sues the Board and the members of its governing body for damages alleged to have been incurred as a result of the higher prices caused by the suspension. The District Court entered summary judgment for defendants, which we affirm.
The Board of Trade of the City of Chicago (herein sometimes called “the Board”), a membership organization governed by a board of twenty directors (herein sometimes called “the directors”), is a “contract-market” subject to the Commodity Exchange Act, 7 U.S.C. § 1, et seq. The Act requires each contract-market to enforce its rules and regulations relating to trading requirements (section 5a(8), 7 U.S.C. § 7a(8)), and “[promptly [to] furnish . . copies of all changes and proposed changes” to the Secretary of Agriculture (section 5a(l), 7 U.S.C. § 7a(l)), who is authorized to disapprove any rule or regulation which he finds to violate any provision of the statute or of any rule, regulation or order thereunder (section 8a(7), 7 U.S.C. § 12a(7)). The Secretary has delegated his duties under the Act to the Act Administrator of the Commodity Exchange Authority. 17 C.F.R. § 140.1, et seq.
“Rules” adopted by the Board’s membershijp and “regulations” adopted by its directors govern trading in commodities futures on the exchange and are incorporated into every contract. Cargill, Inc. v. Hardin, 452 F.2d 1154, 1156 (8th Cir. 1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1770, 32 L.Ed.2d 135 (1972). The Board’s rule 83 provides that the directors, upon ten hours notice, may provide by regulation for price limits on futures contracts in terms of fluctuations from the average closing price of the preceding business day. At the time of the events in issue in the case at bar, regulation 1823, adopted by the directors pursuant to rule 83, limited fluctuations in the price of soybean futures contracts to ten cents per bushel above or below the closing price on the previous business day. Rule 251, as it stood at that time, stated certain actions the directors were empowered to take “by reason of any emergency or otherwise.” The Board’s rule 70 is a broader provision authorizing the directors to adopt any regulations not in conflict with the rules and gives the regulations the same effect as rules.
The January 1973 soybean futures contracts involved in this case were standard agreements traded on the Board of trade in which a seller agreed to deliver and the buyer agreed to pay for 5,000 bushels of soybeans during the month of January 1973. The seller, who of course did not have the future soybeans in hand, was “short” by the amount he had agreed to deliver to the buyer, who in turn was “long” by that amount.
Trading in January 1973 futures contracts on the Board began in about February of 1972 and continued until the final seven business days of the month of January 1973. Until the first day of that month, a “long” or a “short” could leave the market only by “offsetting” his contracts by acquiring opposite contracts in the same commodity. See Board of Trade v. Christie Grain and Stock Co., 198 U.S. 236, 248-250, 25 S.Ct. 637, 49 L.Ed. 1031 (1905). After January 1, 1973, and before the last seven trading days in that month, the contract could be satisfied by either offset or delivery of the grain. In the last seven trading days of January the contract could be satisfied only by delivery of the grain. Thus a “short” who wanted to deliver could do so at any time during January, and a “long” wanting delivery could obtain it by remaining in that position until the last seven trading days.
On January 18, 1973, plaintiff Case & Company, Inc. was “short” twenty January 1973 soybean futures contracts, calling for a delivery of a total of 100,000 bushels of soybeans, with only two trading days left before the last seven trading days of the month. The “cash” market price of soybeans was well above the futures prices, soybeans having been made scarce by high export demands. The situation at that time was described by the Regional Director of the Commodity Exchange Authority as follows:
“At the close of business on Thursday, January 18, the Board was faced with a very difficult situation. Prices of the January future had been up the limit at the close on the three previous days, with unsatisfied bids at the top price each day. The Board had to consider the possibility that with a 10-cent fluctuation limit for the final two trading days, shorts might not be able to cover their contracts.”
After trading closed on that day, the chairman of the board of directors called a special meeting of the directors to be held the next morning, two hours before the opening of trading, for the purpose of determining the action to be taken in view of the divergence between the market and futures prices of soybeans. At the meeting the directors present voted ten to two to suspend the portion of regulation 1823 applying to soybean futures, thereby removing the ten-cent limitation on the amount soybean futures could rise or fall in a trading day. The decision was posted, i. e., made known to traders, at the close of the meeting, which was less than one hour before trading was scheduled to start.
During the day the secretary of the board of directors mailed written notice of the directors’ action to the Commodity Exchange Authority in Washington, D. C. According to his affidavit filed in support of the motion for summary judgment, he also telephoned the Act Administrator of the C.E.A. shortly after the meeting to advise him orally of the action taken. Since, however, the Administrator, in his affidavits filed in this case, did not mention this telephone conversation, and plaintiff argues that this raises doubts as to whether it occurred, we treat the oral notice as disputed and disregard it.
The trading limits having been removed, the price of January 1973 soybean futures contracts rose from $4.69V2 per bushel at closing on January 18 to $4.95 per bushel at the opening on January 19. The price at closing that day was $4.98-$5.00 per bushel and on January 22, the last trading day for January 1973 soybean futures, it closed at $4.95-$4.99. Case & Company liquidated its position on January 19 for just under $4.92 per bushel and claims to have lost $22,000 as a result of the suspension of the soybean trading limits.
Case filed this action on behalf of itself and, purportedly, others who at the close of trading on January 18, 1973 held futures contracts to sell January 1973 soybeans on the Board, naming as defendants the Board of Trade and the members of its board of directors. The defendants were alleged to have violated section 5a(8) of the Act, which requires obedience to the Board’s own rules and regulations, because they failed to give the ten hours advance notice of their action which Case contended was required by rule 83; and to have violated section 5a(l) of the Act by failing promptly to notify the Secretary of the proposed change and the actual change in regulation 1823. The parties submitted the case to the District Court on cross motions for summary judgment supporting their respective motions with affidavits. The District Court entered summary judgment for the defendants, holding that, assuming rule 83 applied, the defendants did not violate section 5a(8) because rule 251, the emergency rule, took precedence over rule 83. The court further held that the defendants did not violate section 5a(l) because the letter of January 19 constituted prompt notice to the Administrator.
Procedural Matters
It is undisputed that a private cause of action may be maintained under the Commodity Exchange Act. See Deaktor v. L. D. Schreiber & Co., 479 F.2d 529 (7th Cir. 1973), rev’d on other grounds sub nom. Chicago Mercantile Exchange v. Deaktor, 414 U.S. 113, 94 S.Ct. 466, 38 L.Ed.2d 344 (1973).
The District Court did not determine whether the action should be maintained as a class action. See Fed.R. Civ.P. 23(c)(1). Neither side complains of this omission. In an appeal from a decision on the merits made without the prior class determination required by Rule 23(c)(1), the reviewing court will treat the case as one brought by the named plaintiff only and not as a class action. Jackson v. Lynn, 165 U.S.App. D.C. 172, 506 F.2d 233, 236 (1974); Davis v. Romney, 490 F.2d 1360, 1366 (3d Cir. 1974); Dorfman v. Boozer, 134 U.S.App.D.C. 272, 414 F.2d 1168, 1171 n. 8 (1969). Thus, in Board of School Commissioners v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975), the District Court having failed to make an adequate class certification, the Supreme Court ordered the complaint dismissed because it found the case moot as to the named plaintiffs. We accordingly treat this case as brought solely on behalf of Case & Company, Inc., the named plaintiff.
Although plaintiff, as well as defendants, moved for summary judgment, it now contends that summary judgment was inappropriate because there are certain disputed questions of fact. The filing of a cross motion for summary judgment does not of course preclude plaintiff from taking this position. 6 J. Moore, Federal Practice ¶ 56.-13 (2d ed. 1974). We conclude, however, for reasons that will appear from our disposition of the merits, that there is no genuine dispute as to any material fact. Disposition by summary judgment was therefore appropriate. Cf. Hochfelder v. Midwest Stock Exchange, 503 F.2d 364 (7th Cir. 1974), cert. denied, 419 U.S. 875, 95 S.Ct. 137, 42 L.Ed.2d 114 (1974); Butterman v. Walston & Co., Inc., 387 F.2d 822 (7th Cir. 1967).
Among the materials submitted in support of the defendants’ motion for summary judgment was an affidavit of the Chairman of the Board of Trade which lists and summarizes some forty instances in the past thirty-five years in which emergency action not specifically covered by rule 251 was taken by the board of directors. In addition, an affidavit of the Act Administrator contains a statement of his interpretation of the Act and a rule of the Board.
Plaintiff contends that the list of the forty instances is hearsay and therefore would not be admissible in evidence as required by Fed.R.Civ.P. 56(e), and should not have been considered by the court in ruling on the motions. We think the list is in the nature of a summary of voluminous evidence, which would be admissible at trial if the underlying evidence is made available to the opposing party. 4 J. Wigmore, Evidence § 1230 at n. 3 (Chadbourn rev. 1972); see also Fed.R. of Evid. 1006, which could properly have been considered by the District Court as a guide at the time this case was decided. United States v. Johnson, 515 F.2d 730, 732 n. 4 (7th Cir. 1975); United States v. McCarthy, 445 F.2d 587, 591 (7th Cir. 1971). Plaintiff’s counsel had an adequate opportunity for discovery and could have inspected the records of the Board of Trade which are summarized in the affidavit and challenged any claimed inaccuracies. It was not error to consider the list in connection with the motion for summary judgment.
Plaintiff also objects that the affidavit of the Act Administrator contains conclusions as to the meaning of the Act and a rule of the Board and whether the Act and the rule were complied with, which are inadmissible in evidence because they are opinions on ultimate issues in the case, and therefore, under Rule 56(e), should not have been considered in connection with defendants’ motion for summary judgment. The ultimate issue rule, however, is abolished by Rule 704 of the Federal Rules of Evidence, which, as we have said, could properly have been used as a guide by the District Court. Opinion testimony that would be admissible at trial may be submitted in an affidavit. 6 J. Moore, Federal Practice ¶ 56.22[1], at 2808, 2812-2813 (2d ed. 1974). The fact that the Administrator’s interpretation given in the affidavit was post litem mo-tam detracts from its persuasive force, as does the fact that it was not made in the course of rendering a decision in an adversary proceeding. Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 290, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946). These defects, however, go to the weight and not the admissibility of the Administrator’s interpretation, which still may be looked to for guidance, Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed.124 (1944), especially when the history and language of the Act is unclear, Fishgold v. Sullivan Drydock & Repair Corp., supra, 328 U.S. at 290, 66 S.Ct. 1105. The persuasiveness of an administrative interpretation “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore v. Swift & Co., supra, 323 U.S. at 140, 65 S.Ct. at 164; see also Brennan v. Great American Discount & Credit Co., 477 F.2d 292, 297 (5th Cir. 1973), cert. denied, 414 U.S. 856, 94 S.Ct. 160, 38 L.Ed.2d 106 (1973). It was thus permissible for the District Court to consider the affidavit of the Act Administrator. We turn now to the merits.
Rule 83 and Section 5a(8) of the Act
Plaintiff argues that the Board and its directors violated the Board’s rule 83 and hence section 5a(8) of the Commodity Exchange Act by failing to give ten hours notice of its action suspending the portion of regulation 1823 governing soybean futures price fluctuations and thereby removing the trading limits on the price of January 1973 soybean futures. Rule 83 provides in pertinent part as follows:
“Fluctuations in Prices. — The Board [of directors] at any time, upon ten hours’ notice by Regulation, may provide that there shall be no trading during any day in any grain . for delivery in any specified month at prices more than a fixed limit above or below the average closing price of the preceding business day.”
The District Court assumed without deciding that rule 83 applied when the directors removed all limits on trading as well as when limits were established or changed, but determined that this rule was overridden by the provisions of rule 251, which reads in pertinent part as follows:
“Emergencies. — The Board [of directors] shall have power to declare any day to be a holiday or to close the Exchange or to stop trading in any security or in any of the future contracts of any commodity, by reason of any emergency or otherwise, and to make such Regulations in regard to deliveries and settlement prices as it may deem proper because thereof. All Exchange contracts shall be subject to the exercise of such power.”
The emergency powers of the directors under rule 251 were held by the District Court not to be limited to those specifically enumerated in the rule. A contrary interpretation, said the court, would unduly restrict the directors’ power and flexibility in dealing with emergencies and in insuring an orderly market.
Plaintiff’s principal contention on appeal is that the specific, which it says is rule 83, should govern the general, which is rule 251, especially since rule 251 on its face specifies only certain enumerated powers of the Board.
The first defect in plaintiff’s argument is that rule 83 does not apply to the action taken by the directors in this case. That rule requires ten hours notice only when the directors adopt a regulation imposing price limits. It does not apply to action removing price limits, temporarily or otherwise, and thereby creating a free market. Apparently the purpose of rule 83 is to give traders time to amend their orders when price freedom is restricted, but, whatever its purpose, it does not purport to deal with the removal, as opposed to the imposition, of price limits.
The fact that, on occasions after January 19, 1973 when the board of directors suspended a part of regulation 1823, more than ten hours notice of the suspension was given does not support plaintiff’s position. It is uncontroverted that in each of these situations the directors were able to meet far enough in advance of the time the suspensions were to become effective to permit the giving of advance notice. In those instances the Board simply gave the notice when its determination was reached. In none of them did the directors purport to be acting pursuant to rule 83.
In addition, we agree with the District Court that the action taken by the directors was authorized by rule 251, under which they were acting. If the Board of Trade is to comply with the duties imposed upon it by the Commodity Exchange Act, 7 U.S.C. §§ 7, 7a, the directors must have broad and flexible powers that will enable them to insure an orderly market and prevent manipulation in prices or the cornering of any commodity. A construction of rule 251 that would limit the powers of the directors to those specifically enumerated in the rule would impair the Board’s ability to perform its statutory duties. As the Act Administrator stated in his affidavit filed in this case,
“It is the view of the Commodity Exchange Authority that Rule 251 of the Board of Trade of the City of Chicago gives the Exchange broad authority to take action under emergency situations to assure the maintenance of an orderly market. The rule has been invoked by the Exchange on a number of instances in the past for this purpose and the actions by the Exchange have not been restricted to actions expressly referred to in Rule 251. It is my view that if Rule 251 or a similar rule were applied so as to seriously limit the actions that an exchange could take to maintain an orderly market and to prevent unreasonable fluctuations in price, price manipulations, corners, and other market disruptions, the exchange would not be meeting its statutory duties under the Act.”
Our interpretation of rule 251 is consistent with the Board of Trade’s longstanding interpretation of that rule, as shown by some forty instances in which the directors adopted measures not specifically enumerated in the rule during the thirty-five years preceding this litigation. The construction placed upon its own rule by the Board over many years is very persuasive if not controlling. As the court said in Moses v. Burgin, 445 F.2d 369 (1st Cir. 1971), cert. denied, 404 U.S. 994, 92 S.Ct. 532, 30 L.Ed.2d 547 (1971) , concerning a rule of a stock exchange,
“Whatever the terminology, the nature of the obligations imposed by such rules is to be determined primarily on the basis of the construction which the exchanges that adopted the rules gave to them. A court is not free to regard the problem as a statutory interpretation issue of first impression.” 445 F.2d at 382 (footnote omitted)
See also Intercontinental Industries, Inc. v. American Stock Exchange, 452 F.2d 935, 940 (5th Cir. 1971), cert. denied, 409 U.S. 842, 93 S.Ct. 41, 34 L.Ed.2d 81 (1972); cf. Joy v. Ditto, 356 Ill. 348, 357, 190 N.E. 671, 675 (1934).
Plaintiff cannot take much comfort from the amendment of rule 251 after the events complained of here to express the Board’s emergency powers in broad general terms and provide that any temporary action taken under the rule “shall supersede all contrary or inconsistent rules or regulations during the pendency of the emergency.” By amending the rule, the Board of Trade did not impliedly admit the correctness of plaintiff’s position, but rather sought to remove any room for argument and foreclose the possibility of any future disputes like the one at bar.
Even if rule 251 were construed not to authorize actions other than those it specifies, the directors would have had the power to amend regulation 1823 under the Board’s rule 70 which authorized the directors, without restriction, to “adopt regulations not in conflict with the Rules, which shall have the binding effect of the Rules.” The power to adopt regulations includes the power to amend them. The removal of the price trading limitation was the amendment, albeit temporarily, of a regulation. Since rule 83 was inapplicable to the action taken by the directors and no other rule of the Board prohibited that action, the directors were authorized by rule 70 to amend regulation 1823.
Section 5a(l) of the Act
Section 5a(l) of the Act, 7 U.S.C. § 7a(l), requires that a commodity exchange “promptly furnish the Secretary of Agriculture copies ... of all changes and proposed changes” in its regulations. Plaintiffs’ contention is that the section requires advance notice of a proposed change, and, further, that whether notice was given “promptly” is a question of fact that should not have been resolved on motion for summary judgment.
We find some guidance on the advance notice question in section 8a(7) of the Act, 7 U.S.C. § 12a(7), which authorizes the Secretary of Agriculture to disapprove a regulation which is “made, issued or proposed” by a commodity exchange. This provision contemplates that a regulation which the Secretary is to review may already be in effect, a situation which will occur when the adoption of a regulation comes so soon after it is proposed that»a notice which would permit an opportunity for the Secretary’s review is impracticable. This will inevitably be the case when a regulation is adopted or changed to deal with an emergency. The construction of the Act urged by plaintiff, which would in effect require that the Secretary be given sufficient advance notice of a proposed change to permit him to review the proposal before its adoption, would prevent the commodity exchanges from dealing effectively with emergencies, a result which we cannot believe Congress intended.
C.E.A. regulation 1.41, 17 C.F.R. § 1.41 (1974), adopted after the events here, requires that copies of a proposed change in a regulation of an exchange be filed with the agency three weeks prior to its effective date, but provides that in “unusual circumstances in which such notice is impractical, ... as much notice as the circumstances permit” must be given. According to the Act Administrator’s affidavit, the agency has interpreted this regulation, as it interpreted section 5a(l) before the adoption of the regulation, not to require advance notice of a change “when such advance notice is impracticable under the circumstances.” The Act Administrator also said:
“The Commodity Exchange Authority has construed the above notice [the letter of January 19] as compliance with the requirements of section 5a(l) and has neither instigated nor contemplates instigating a proceeding against the Board of Trade of the City of Chicago for violation of such action.”
Accordingly, the interpretation of section 5a(l) by the agency charged with its enforcement is consistent with the one we adopt.
The facts upon which the question of the promptness of the notice depends are not disputed. A market condition which the directors could properly view as an emergency existed. The special meeting of January 19 was not called until after the end of trading the preceding day. The suspension of price limits on January 1973 soybean futures contracts was first proposed and was adopted at that meeting, and for reasons the directors could properly regard as sufficient, was to commence that same morning at the opening of trading. Notice could not have been given to the Secretary’s delegate in time to permit the C.E.A. to consider intelligently and pass on the action of the directors before it was to become effective. In these circumstances, the mailing of written notice the same day the suspension was proposed and adopted could not have been found to be untimely. Moreover, since, as we have held, the suspension was not unlawful, there was no basis upon which the Secretary’s delegate could have set it aside even if lengthy advance notice had been given. There was no genuine issue of material fact relating to the promptness of the notice.
Affirmed.
. But see Ridinger v. General Motors Corp., 474 F.2d 949 (6th Cir. 1972), where the court, apparently sua sponte, remanded the case to the district court because of the failure to rule on a Rule 23 certification request, rather than treating the case as an individual action. (At the same time the court instructed the district court to reconsider its ruling on the merits in light of an intervening Sixth Circuit decision.) But cf. Garrett v. City of Hamtramck, 503 F.2d 1236, 1243-1246 (6th Cir. 1974).
. The District Court found the legislative history of section 5a(l) ambiguous on the question of whether both notice of a proposed change and notice of a change had to be sent when the change was proposed and adopted at the same meeting, and we agree. The District Court said on this subject:
“The legislative history does not provide a clear expression of the intendment of Section 5a(l). The section first appeared as a part of HR 9623 which passed the House June 4, 1934 but died there because the 73d Congress concluded a short time thereafter. House Report No. 1637 (May 15, 1934) accompanying that bill notes only: ‘Section 7 of the bill inserts a new section (sec. 5a) in the Grain Futures Act which requires boards of trade which have been designated as contract markets to (1) furnish the Secretary copies of their by-laws, rules, resolutions, etc., and changes therein.’ Without more, the statement connotes that the prompt furnishing of adopted changes is sufficient. HR 6772, which is the present Commodity Exchange Act, carried forth Section 5a(l) and House Report No. 421 (March 18, 1935) adopted the language of House Report 1637 with respect to this section. Nothing more was added. The House and Senate Hearings add nothing to the meaning of Section 5a(l). See Hearings Before the Committee on Rules of the House of Representatives on H.R. 9623, 73d Cong. 2d Sess. (May 16, 1934); Hearings Before the Committee on Agriculture and Forestry on H.R. 6772, 74th Cong., 2d Sess. (Apr. 21-23, 1936). See also House Report No. 1668; Letter from Secretary of Agriculture, Sen.Doc. No. 61, 73d Cong., 1st Sess. (May 13, 1933).”
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_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.
F. S. BOWEN ELECTRIC CO., Inc., use plaintiff, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, defendant, and Porter Construction Company, Inc., third party defendant, Appellees.
No. 7598.
United States Court of Appeals Fourth Circuit.
Argued March 7, 1958.
Decided June 2, 1958.
Michael A. Schuchat, Washington, D. C. (Paul R. Harmel, and Geiger, Harmel & Schuchat, Washington, D. C., on brief), for appellant.
Martin R. Fain, Washington, D. C. (Richard A. Bishop, and Jackson, Gray & Pain, Washington, D. C., on brief), for appellee, United States Fidelity & Guaranty Co.
Benj. W. Dulany, Washington, D. C. (William C. Bauknight, Fairfax, Va., and Douglas, Obear & Campbell, Washington, D. C., on brief), for appellee, Porter Construction Co., Inc.
Before PARKER, Chief Judge, HAYNSWORTH, Circuit Judge, and HOFFMAN, District Judge.
HAYNSWORTH, Circuit Judge.
In December 1955, Porter Construction Co., Inc., a Maryland corporation engaged in the business of a general construction contractor, made certain transfers which were challenged by its surety, United States Fidelity and Guaranty Company, as being in violation of the Uniform Fraudulent Conveyance Act, which is incorporated in Article 39B of the Code of Maryland (1951).
The District Court for the Eastern District of Virginia set aside certain of the questioned transfers, aggregating $32,-880.06, and F. S. Bowen Electric Co., Inc., the alleged transferee, has appealed. A notice of a cross-appeal directed to the failure of the District Court to set aside the transfer of another item was filed, but was dismissed with consent of all parties.
Bowen company here contends primarily that the transfer of the $32,880.06 did not render the Porter company insolvent within the meaning of § 4 of the Act While the Porter company had a net worth,as of September 30, 1955, as shown by the report of its own accountant, of only $26,994.88, Bowen asserts that a balance sheet item of approximately $142,000, entitled “Reserve for Unearned Profit on Work in Progress,” 2*should be treated as part of the net worth.
Porter company kept its books on the completed contracts method. That method has come into widespread use because of the difficulty, or impossibility, of accurate determination of profit or loss on large construction projects until the work is substantially completed. Such work is subject to so many vicissitudes and unexpected expense that accruals of income, during the early stages of construction, were not infrequently found to be most unrealistic in the light of actual profit or loss as finally determined, with accuracy, upon completion of the contract.
Though use of the completed contracts method of accounting avoids the necessity of estimating interim profit or loss on uncompleted contracts as of the date of each financial statement, it does not obviate credits and charges to other balance sheet items which inevitably result from current performance of the work. Wages paid must still diminish cash, and intermediate billings increase accounts receivable. Necessarily, therefore, use of the method requires offsetting balance sheet entries. If a temporary excess of accumulated cost over the aggregate of related intermediate billings is not to reduce net worth, it must be shown as an asset, while, conversely, a temporary excess of intermediate billings over accumulated cost must be shown as a liability on the balance sheet.
The ratio, at any given moment, between intermediate billings and accumulated cost is determined largely by billing practice and the initial rate of cost accrual. It has little, if any, relationship to interim, or ultimate, profit or loss. A contractor who agrees to construct a building for a financially responsible owner at a fixed price of $1,000,000 and who completes the work at an actual cost of $950,000 has suffered a loss at no stage of the work, though he submits no bill until the project is completed. Nor could he conceivably be said to have earned a profit of $1,000,000 if that amount was paid to him in full before he began his performance of the contract. Until, in the latter instance, he has discharged his obligation under the contract, that obligation — -measured, under the completed contracts method, by the excess of billings over accumulated cost — must be carried as a liability upon a financial statement.
Because the obligation of the contract is in every sense current, the Committee on Accounting Procedure of the American Institute of Accountants, in October 1955, issued its Bulletin No. 45, recommending that such excess of billings over related cost be shown as a current liability, rather than, as theretofore had been the practice, as a deferred liability. Such bulletins are generally recognized as setting the standards of practice in the accounting profession, but it is quite immaterial here whether the item is properly treated as a current, or a deferred, liability. It is, in any event, a liability, and, under no circumstances, could it be treated as a credit to earned surplus.
For the reasons suggested, the contention of the Bowen company that the “Reserve for Unearned Profit * * * ” is not a liability because it is not “owed” to anyone overlooks the actual obligation of the contractor and the inherent necessity of balancing a balance sheet without wanton distortion of apparent net worth.
In fairness to the principals involved, it may be stated that the record strongly indicates they believed the Porter company.to have been worth much more than it was, and that they regarded the “Reserve for Unearned Profit * * * ” as something akin to realized profit, but as the president of the Porter company testified, “I didn’t understand the audit myself, had to have somebody to tell me.” The misconceptions of the principals may lead to imprudence occasioning insolvency, but they cannot support a finding of solvency where clearly there was insolvency.
Determination of the issue of solvency, under the statute, requires an appraisal of probable liabilities as well as the salable value of assets. A particular accounting method should not so circumscribe the inquiry that unsalable assets are treated as salable, or technical and contingent liabilities, as absolute and ascertained. The proof here, however, was that the uncompleted contracts ultimately resulted in tremendous losses. No engineering or other appraisal was offered which would justify a finding that there was a reasonable basis for current accrual of profit in the uncompleted contracts on the date of the transfers in question. There is general reference to increases in costs some six months later, but nothing to require a finding that, on the date of transfer, there was any reasonable basis to determine an interim, or ultimate, profit. Instead, primary reliance is placed upon the fortuitous circumstance that intermediate billings temporarily exceeded accumulated cost, a circumstance which we find to have no necessary relevance to the issue, or probative force. The District Court was clearly justified in finding no ascertainable profit in the contracts in process of completion.
Because it was contended that one of the transferred items was not reflected in the balance sheets and that the net worth was greater than the cash item transferred, the District Judge considered the salable value of the fixed assets of the Porter company, finding it to be no more than $15,000 to $20,000. The company had been organized in 1952. By September 1955 it had a gross fixed asset account of $43,937.97, of which $19,730.53 were “tools,” as distinguished from “construction equipment,” items which frequently, if not ordinarily, are not capitalized. Over the period, depreciation on all fixed assets of $7,880.84, or just under 18% of the cost, had been accumulated. As of November 30, 1955, the fixed asset account stood at $51,801.94, of which $21,-596.77 represented tools, and only $9,-266.78 was shown as depreciation against the total account.
If we assume that the depreciation rates were permitted, even required, by taxing authorities the resulting book values of construction equipment, vehicles, office equipment and expendable tools have no necessary relation to “salable value,” the standard prescribed by § 2 of the Act. An appraisal by a dealer indicates the “salable value” of these assets to be a fraction of the net book value and, as the District Judge found, it is common knowledge that the resale value of such assets is much below original cost discounted by less than 18%.
The main thrust of Bowen’s argument here is that book values, however unrealistic, are conclusive on the issue of salable value, while liabilities which have not been precisely ascertained in amount are to be completely ignored. The District Judge was quite correct in finding no merit in either branch of the contention.
While the Bowen company denies that it was the transferee of the disputed items, the record is quite sufficient to support the finding of the District Judge that it was. One of the items, a check for $20,100 was made payable to F. S. Bowen, the controlling, or sole, stockholder of the Bowen company, and was immediately endorsed by him and deposited to the credit of the Bowen company. The fact that, on the books of the company, it was entered as a credit to the personal account of Mr. and Mrs. Bowen does not give the company the status of a bona fide purchaser. If it was not intended, from the outset, to be the recipient of the funds, it did receive them and it took them charged with knowledge of all of the circumstances.
The other item was a release of a portion of a substantial claim of the Porter company against the Bowen company. Several different items made up the total claim, the largest single item being the cost of construction of a warehouse upon land owned by Bowen individually. The account was carried on the books of the Porter company in the name of the Bowen company, however, and it was settled with funds advanced by the Bowen company. There was abundant basis for viewing the relations of the parties, with respect to this particular work, as if Bowen company was the general contractor and the Porter company the subcontractor and for the finding that the work was performed on the credit of Bowen company, which would remain liable to its subcontractor, whatever reductions or discounts it intended to pass on to the owner.
The surety company had to take over Porter’s construction contracts. In the performance of those contracts it has expended several hundred thousand dollars in excess of its receipts, and there is little, if any, doubt that its loss, when finally determined, will be substantial. Meanwhile, it has the standing of a creditor to maintain this action, and there is no merit in Bowen’s contention that the action is premature.
The allowance of prejudgment interest on the cash item transferred was within the sound discretion of the Trial Court. We find no basis for concluding that the discretion was abused in its exercise here.
Affirmed.
. The item represents the excess of intermediate billings over related accumulated costs on projects under construction.
, If there is reasonable basis to anticipate an ultimate loss in a particular contract, good accounting practice, if the matter is material to the statement, may require that a financial statement adequately reflect the probability of such loss, even though the completed contracts method is used.
. It was contended tliat the assets of the Porter company were overstated and its liabilities understated in other respects. We need not consider these other contentions, however, for it is clear from what has been considered, that the company was insolvent immediately after theso transfers. Nor need we consider the possible application of § 5 of the Act, for the transfers left the company insolvent, not with just an unreasonably small capital for the volume of business it was conducting.
. See American Surety Company of New York v. Marotta, 287 U.S. 513, 53 S.Ct. 260, 77 L.Ed. 466.
. The late Chief Judge John J. Parker expressed his approval of the result in the foregoing ease, but the opinion, written after his death on March 17, 1958, did not receive his consideration.
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_lcdisagreement
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
ICICLE SEAFOODS, INC. v. WORTHINGTON et al.
No. 85-195.
Argued February 25, 1986
Decided April 21, 1986
Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, Blackmun, Powell, and O’Connor, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 715.
Clemens H. Barnes argued the cause for petitioner. With him on the briefs were James D. Rolfe and Erik Rosenquist.
Carson F. Eller argued the cause and filed a brief for respondents.
Eileen Madrid filed a brief for Maryland Casualty Co. as amicus curiae.
Justice Rehnquist
delivered the opinion of the Court.
Respondents sued their employer, petitioner Icicle Sea-foods, Inc., to recover overtime benefits to which they thought they were entitled under the Fair Labor Standards Act (FLSA), 29 U. S. C. § 207(a)(1). After a 2-day trial, the United States District Court for the Western District of Washington held that respondents were excluded from the overtime benefits of the FLSA by 29 U. S. C. § 213(b)(6), which excludes “any employee employed as a seaman.” Reviewing this issue under a “de novo” standard of review, the Court of Appeals for the Ninth Circuit reversed the judgment of the District Court, holding that respondents were not “seamen,” but instead were industrial maintenance employees on a barge that processed fish caught by a fishing fleet in the coastal waters of the Pacific Northwest. 774 F. 2d 349 (1985). We granted certiorari to consider whether the Court of Appeals applied the appropriate standard of review in passing on the District Court’s judgment. 474 U. S. 900 (1985).
The District Court made the following pertinent findings of fact related to whether respondents were “seamen” within the meaning of § 213(b)(6):
“2. Defendant Icicle Seafoods owned and operated a seafood processing vessel named the ARCTIC STAR. Each of the Plaintiffs worked for Defendant on board the ARCTIC STAR as members of the Engineering Department .... The ARCTIC STAR is a nonself-propelled barge which is moved from place to place with the aid of a tow boat, and is located throughout the waters of Alaska or Washington, depending on the season and type of seafood being caught and processed.
“7. None of the Plaintiffs were members of the Processing Crew on board the ARCTIC STAR. The Processing Crew performed all the hands-on processing or packing of the fish or shellfish. Plaintiffs were members of the Engineering Department on board the ARCTIC STAR, considered themselves very distinct from the Processing Crew, and did not perform any hands-on processing or packing of fish or shellfish. As members of the Engineering Department, Plaintiffs were responsible for maintaining all systems for support and continuous operation of the vessel while at moorage or underway. Although working in shifts, the Plaintiffs had to be available on call 24 hours a day to perform work at a moment’s notice if necessary to keep the vessel operating. Even though the plaintiffs were not licensed by the Coast Guard as engineers or members of an engineering department, each of the Plaintiffs performed tasks which conformed to those expected of Coast Guard licensed personnel. The very description of the Plaintiff’s work is that of a marine engineer or member of an engineering department. In summary, each of the Plaintiffs were members of the crew of the ARCTIC STAR and performed work which was maritime in character and rendered while the ARCTIC STAR was in navigable waters. Each of the Plaintiff’s employment was that of a seaman.” App. A-3 to Pet. for Cert. 2-3, 5-6.
The Court of Appeals read the District Court’s opinion as holding that respondents were “seamen” under § 213(b)(6) because the evidence showed that they “performed work of a maritime character on navigable waters.” 774 F, 2d, at 351.
In reviewing this conclusion, the Court of Appeals initially pointed out that it and other Courts of Appeals have applied conflicting standards of review to claims of exclusion from the FLSA, and attributed these different approaches to three cases decided by this Court within a few months of each other during its October 1946 Term. Ibid. The Court of Appeals recognized that in Walling v. General Industries Co., 380 U. S. 545 (1947), this Court held that whether an employee falls within the exclusion for “executives” under 29 U. S. C. § 213(a)(1) is a factual question subject to the “clearly erroneous” standard of review set forth in Rule 52(a) of the Federal Rules of Civil Procedure. 774 F. 2d, at 352. But it thought that in Levinson v. Speetor Motor Service, 330 U. S. 649 (1947), and Rutherford Ford Corp. v. McComb, 331 U. S. 722 (1947), this Court appeared to apply a “de novo” standard of review to whether an employee falls within an exclusion for employees covered by the Motor Carrier Act and to whether someone is an independent contractor rather than an employee. 774 F. 2d, at 352. The Court of Appeals reconciled its reading of these cases on grounds that the regulations implementing the provisions at issue in Levinson and Rutherford were “illustrative and general,” whereas those in Walling were “specific,” and that the trial court’s findings in Walling were based on the conflicting testimony of witnesses. Ibid.
We think that neither Levinson nor Rutherford should be read to depart from the rule laid down in Walling. Levinson involved a case that was brought to this Court from the Supreme Court of Illinois, and that court had accepted the factual findings made by the Illinois Appellate Court. But state courts are not required to apply Rule 52(a) — a rule of federal civil procedure — to their own appellate system for reviewing factual determinations of trial courts. Rutherford came up through the federal court system, and this Court held that the District Court erroneously based its conclusion that particular employees were independent contractors on “isolated factors” in the employee’s relationship with the employer. 331 U. S., at 729-730. We set forth a lengthy summary of the facts without indicating the source for such a summary; but a fair reading of the opinion indicates that we were focusing on a legal question, and not on the allocation of factfinding responsibilities between district courts and courts of appeals. We therefore reaffirm our holding in Walling that the facts necessary to a proper determination of the legal question whether an exemption to the FLSA applies in a particular case should be reviewed by the courts of appeals pursuant to Rule 52(a), like the facts in other civil bench-tried litigation in federal courts.
The Court of Appeals in this case proposed to “apply a de novo standard of review to the application of the exemption to the facts and [to] review the facts under a clearly erroneous standard.” 774 F. 2d, at 352, citing United States v. McConney, 728 F. 2d 1195, 1202 (CA9) (en banc), cert. denied, 469 U. S. 824 (1984). But nowhere in its opinion did the court ever mention any of the factual findings of the District Court, much less discuss or analyze them. The Court of Appeals seems to have believed that the District Court applied the wrong legal standard for what constitutes a “seaman” under § 213(b)(6). Whereas the District Court concluded that respondents were seamen because they performed work of a maritime character on navigable waters, see App. A-3 to Pet. for Cert. 6, the Court of Appeals held that under the pertinent regulations, the critical factor for determining whether an employee on a vessel is a seaman is whether his “duties primarily aid navigation of the vessel.” 774 F. 2d, at 353; see also 29 CFR §§783.31, 783.33, 783.36 (1985). The Court of Appeals reviewed the record independently and found that the “dominant employment” of the respondents was “industrial maintenance,” and that the “maritime work” that the respondents performed took but a small portion of their work time. 774 F. 2d, at 353. It therefore concluded that respondents were industrial maintenance employees and not seamen. Ibid.
We think that the Court of Appeals was mistaken to engage in such factfinding. The District Court found that “each of the [respondents] . . . performed work which was maritime in character and rendered while the ARCTIC STAR was in navigable waters.” App. A-3 to Pet. for Cert. 6. But it made no finding that the “maritime work” was “incidental and occasional, taking but a small portion of the work time.” 774 F. 2d, at 353. The question of how the respondents spent their working time on board the Arctic Star is a question of fact. The question whether their particular activities excluded them from the overtime benefits of the FLSA is a question of law which both parties concede is governed by the pertinent regulations promulgated by the Wage and Hour Administrator. See 29 CFR pt. 783 (1985). If the Court of Appeals believed that the District Court had failed to make findings of fact essential to a proper resolution of the legal question, it should have remanded to the District Court to make those findings. If it was of the view that the findings of the District Court were “clearly erroneous” within the meaning of Rule 52(a), it could have set them aside on that basis. If it believed that the District Court’s factual findings were unassailable, but that the proper rule of law was misapplied to those findings, it could have reversed the District Court’s judgment. But it should not simply have made factual findings on its own. As we stated in Anderson v. Bessemer City, 470 U. S. 564, 574-575 (1985):
“The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources.”
The judgment of the Court of Appeals is accordingly vacated, and the cause is remanded to that court for further proceedings consistent with this opinion.
It is so ordered.
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
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sc_issue_1
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37
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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.
TANNER et al. v. UNITED STATES
No. 86-177.
Argued March 31, 1987
Decided June 22, 1987
O’Connor, J., delivered the opinion for a unanimous Court with respect to Parts III and IV and the opinion of the Court with respect to Parts I and II, in which Rehnquist, C. J., and White, Powell, arid Scalia, JJ., joined. Marshall, J., filed an opinion concurring in part and dissenting in part, in which Brennan, Blackmun, and Stevens, JJ., joined, post, p. 134.
John A. DeVault III argued the cause for petitioners. With him on the briefs were Timothy J. Corrigan and David R. Best.
Richard J. Lazarus argued the cause for the United States. With him on the brief were Solicitor General Fried, Assistant Attorney General Weld, Deputy Solicitor General Bryson, and Gloria C. Phares.
Justice O’Connor
delivered the opinion of the Court.
Petitioners William Conover and Anthony Tanner were convicted of conspiring to defraud the United States in violation of 18 U. S. C. §371, and of committing mail fraud in violation of 18 U. S. C. § 1341. The United States Court of Appeals for the Eleventh Circuit affirmed the convictions. 772 F. 2d 765 (1985). Petitioners argue that the District Court erred in refusing to admit juror testimony at a post-verdict hearing on juror intoxication during the trial; and that the conspiracy count of the indictment failed to charge a crime against the United States. We affirm in part and remand.
I
Conover was the procurement manager at Seminole Electric Cooperative, Inc. (Seminole), a Florida corporation owned and operated by 11 rural electric distribution cooperatives. Seminole generates and transmits electrical energy to the cooperatives.
In 1979, Seminole borrowed over $1.1 billion from the Federal Financing Bank in order to construct a coal-fired power plant near Palatka, Florida. The loan was guaranteed by the Rural Electrification Administration (REA), a credit agency of the United States Department of Agriculture that assists rural electric organizations by providing loans, guaranteeing loans from other sources, and approving other security arrangements that allow the borrower to obtain financing. REA, A Brief History of the Rural Electrification and Telephone Programs (1985). The loan agreement between Seminole and the REA provided for federal supervision of the construction project. Under the contract, the REA could supervise the construction and equipment of the electric system, and inspect, examine, and test all work and materials relating to the construction project. App. 61-62. REA Bulletins and REA memoranda required Seminole to obtain REA approval before letting out certain contracts, and required certain bidding procedures to be used depending on the type of contract. Id., at 83, 105-108.
Construction of the Palatka plant began in September 1979. To provide access to an area where a transmission line would be run, the plans called for the construction of a 51-mile patrol road. The road required materials that would support heavy trucks and resist flooding, and in March 1981, Conover was informed that Seminole’s current construction contractor was having difficulty obtaining enough suitable fill material for the road. The contractor indicated that it had not attempted to locate alternative fill materials, and that the contract price would have to be increased substantially in order for them to complete the road. The contract was subsequently terminated.
Following the March meeting at which Conover was informed of the difficulty with the patrol road, Conover called a friend, Anthony R. Tanner. Tanner owned a limerock mine, and the two discussed the possibility of using lime-rock and limerock overburden as an alternative fill material. At Conover’s request, a Seminole engineer examined the material at Tanner’s mine and determined that it would be suitable for the road. Seminole acquired limerock overburden from Tanner on an interim basis so that road construction could continue while bids were solicited for the remainder of the project. Seminole called for bids on a contract for provision of fill materials as well as a contract for building the road. Both contracts were to be paid with loan money guaranteed by the REA, and the contract for building the road required the REA’s approval. The final specifications for the two contracts, which were prepared by Conover’s procurement department, were favorable to Tanner’s company in several respects. Tanner was awarded both contracts on May 14, 1981. The fill material contract paid approximately $1,041,800, and the road construction contract paid approximately $548,000. App. 10.
Several problems developed after Tanner began working on the road. There was a dispute as to whether Seminole or Tanner was required to maintain access roads leading to the patrol road. Conover advised Seminole that the contract was ambiguous and that Seminole should pay for maintenance of the access road; ultimately Seminole did pay for the access road. Later, the REA complained that the bond provided by Tanner was not from a bonding company approved by the Treasury Department. In two letters to another bonding company in July 1981, Conover represented the construction on the patrol road to be considerably more advanced than it was at that time. It was also discovered during the course of construction that limerock, which weakens when wet, could not be used in areas subject to flooding. For those areas Tanner’s company provided and spread sand, at a higher price than the sand provided and spread by the first contractor. The patrol road was completed in October 1981.
At the time Conover called Tanner about using limerock as a fill material for Seminole’s patrol road, Tanner and Conover were friends and had engaged in several business deals together. In January 1981 Conover had obtained a contract from Tanner to perform landscaping work and install a sprinkler system at a condominium complex owned by Tanner. In early March 1981, Tanner paid Conover $10,035, allegedly in partial payment for the landscaping work; eventually Con-over received a total of $15,000 for the work. In May 1981 Conover purchased a condominium from Tanner, and Tanner loaned Conover $6,000 so that Conover could close on the condominium.
In June 1981, before the patrol road was finished, representatives of one of the members of the Seminole cooperative requested that Seminole end all business relations with Tanner. Seminole initiated an internal investigation, after which Seminole suspended and later demoted Conover for violation of the company’s conflict of interest policies.
Federal authorities also investigated the situation, and in June 1983 Conover and Tanner were indicted. A 6-week trial resulted in a hung jury and a mistrial was declared. The two were subsequently reindicted; the first count alleged conspiracy to defraud the United States in violation of 18 U. S. C. §371, and the second through fifth counts alleged separate instances of mail fraud in violation of 18 U. S. C. § 1341. Conover was convicted on all counts; Tanner was convicted on all but count three.
The day before petitioners were scheduled to be sentenced, Tanner filed a motion, in which Conover subsequently joined, seeking continuance of the sentencing date, permission to interview jurors, an evidentiary hearing, and a new trial. According to an affidavit accompanying the motion, Tanner’s attorney had received an unsolicited telephone call from one of the trial jurors, Vera Asbul. App. 246. Juror Asbul informed Tanner’s attorney that several of the jurors consumed alcohol during the lunch breaks at various times throughout the trial, causing them to sleep through the afternoons. Id., at 247. The District Court continued the sentencing date, ordered the parties to file memoranda, and heard argument on the motion to interview jurors. The District Court concluded that juror testimony on intoxication was inadmissible under Federal Rule of Evidence 606(b) to impeach the jury’s verdict. The District Court invited petitioners to call any nonjuror witnesses, such as courtroom personnel, in support of the motion for new trial. Tanner’s counsel took the stand and testified that he had observed one of the jurors “in a sort of giggly mood” at one point during the trial but did not bring this to anyone’s attention at the time. Id., at 170.
Earlier in the hearing the judge referred to a conversation between defense counsel and the judge during the trial on the possibility that jurors were sometimes falling asleep. During that extended exchange the judge twice advised counsel to immediately inform the court if they observed jurors being inattentive, and suggested measures the judge would take if he were so informed:
“MR. MILBRATH [defense counsel]: But, in any event, I’ve noticed over a period of several days that a couple of jurors in particular have been taking long naps during the trial.
“THE COURT: Is that right. Maybe I didn’t notice because I was-
“MR. MILBRATH: I imagine the Prosecutors have noticed that a time or two.
“THE COURT: What’s your solution?
“MR. MILBRATH: Well, I just think a respectful comment from the Court that if any of them are getting drowsy, they just ask for a break or something might be helpful.
“THE COURT: Well, here’s what I have done in the past — and, you have to do it very diplomatically, of course: I once said, I remember, T think we’ll just let everybody stand up and stretch, it’s getting a little sleepy in here,’ I said, but that doesn’t sound good in the record.
“I’m going to — not going to take on that responsibility. If any of you think you see that happening, ask for a bench conference and come up and tell me about it and I’ll figure out what to do about it, and I won’t mention who suggested it.
“MR. MILBRATH: All right.
“THE COURT: But, I’m not going to sit here and watch. I’m — among other things, I’m not going to see— this is off the record.
“(Discussion had off the record.)
“... [T]his is a new thing to this jury, and I don’t know how interesting it is to them or not; some of them look like they’re pretty interested.
“And, as I say, if you don’t think they are, come up and let me know and I’ll figure how — either have a recess or — which is more than likely what I would do.” Tr. 12-100-12-101.
As the judge observed during the hearing, despite the above admonitions counsel did not bring the matter to the court again. App. 147.
The judge also observed that in the past courtroom employees had alerted him to problems with the jury. “Nothing was brought to my attention in this case about anyone appearing to be intoxicated,” the judge stated, adding, “I saw nothing that suggested they were.” Id., at 172.
Following the hearing the District Court filed an order stating that “[o]n the basis of the admissible evidence offered I specifically find that the motions for leave to interview jurors or for an evidentiary hearing at which jurors would be witnesses is not required or appropriate.” The District Court also denied the motion for new trial. Id., at 181-182.
While the appeal of this case was pending before the Eleventh Circuit, petitioners filed another new trial motion based on additional evidence of jury misconduct. In another affidavit, Tanner’s attorney stated that he received an unsolicited visit at his residence from a second juror, Daniel Hardy. Id., at 241. Despite the fact that the District Court had denied petitioners’ motion for leave to interview jurors, two days after Hardy’s visit Tanner’s attorney arranged for Hardy to be interviewed by two private investigators. Id., at 242. The interview was transcribed, sworn to by the juror, and attached to the new trial motion. In the interview Hardy stated that he “felt like... the jury was on one big party.” Id., at 209. Hardy indicated that seven of the jurors drank alcohol during the noon recess. Four jurors, including Hardy, consumed between them “a pitcher to three pitchers” of beer during various recesses. Id., at 212. Of the three other jurors who were alleged to have consumed alcohol, Hardy stated that on several occasions he observed two jurors having one or two mixed drinks during the lunch recess, and one other juror, who was also the foreperson, having a liter of wine on each of three occasions. Id., at 213-215. Juror Hardy also stated that he and three other jurors smoked marijuana quite regularly during the trial. Id., at 216-223. Moreover, Hardy stated that during the trial he observed one juror ingest cocaine five times and another juror ingest cocaine two or three times. Id., at 227. One juror sold a quarter pound of marijuana to another juror during the trial, and took marijuana, cocaine, and drug paraphernalia into the courthouse. Id., at 234-235. Hardy-noted that some of the jurors were falling asleep during the trial, and that one of the jurors described himself to Hardy as “flying.” Id., at 229. Hardy stated that before he visited Tanner’s attorney at his residence, no one had contacted him concerning the jury’s conduct, and Hardy had not been offered anything in return for his statement. Id., at 232. Hardy said that he came forward “to clear my conscience” and “[bjecause I felt... that the people on the jury didn’t have no business being on the jury. I felt... that Mr. Tanner should have a better opportunity to get somebody that would review the facts right.” Id., at 231-232.
The District Court, stating that the motions “contain supplemental allegations which differ quantitatively but not qualitatively from those in the April motions,” id., at 256, denied petitioners’ motion for a new trial.
The Court of Appeals for the Eleventh Circuit affirmed. 772 F. 2d 765 (1985). We granted certiorari, 479 U. S. 929 (1986), to consider whether the District Court was required to hold an evidentiary hearing, including juror testimony, on juror alcohol and drug use during the trial, and to consider whether petitioners’ actions constituted a conspiracy to defraud the United States within the meaning of 18 U. S. C. § 371.
II
Petitioners argue that the District Court erred in not ordering an additional evidentiary hearing at which jurors would testify concerning drug and alcohol use during the trial. Petitioners assert that, contrary to the holdings of the District Court and the Court of Appeals, juror testimony on ingestion of drugs or alcohol during the trial is not barred by Federal Rule of Evidence 606(b). Moreover, petitioners argue that whether or not authorized by Rule 606(b), an evidentiary hearing including juror testimony on drug and alcohol use is compelled by their Sixth Amendment right to trial by a competent jury.
By the beginning of this century, if not earlier, the near-universal and firmly established common-law rule in the United States flatly prohibited the admission of juror testimony to impeach a jury verdict. See 8 J. Wigmore, Evidence § 2352, pp. 696-697 (J. McNaughton rev. ed. 1961) (common-law rule, originating from 1785 opinion of Lord Mansfield, “came to receive in the United States an adherence almost unquestioned”).
Exceptions to the common-law rule were recognized only in situations in which an “extraneous influence,” Mattox v. United States, 146 U. S. 140, 149 (1892), was alleged to have affected the jury. In Mattox, this Court held admissible the testimony of jurors describing how they heard and read prejudicial information not admitted into evidence. The Court allowed juror testimony on influence by outsiders in Parker v. Gladden, 385 U. S. 363, 365 (1966) (bailiff’s comments on defendant), and Remmer v. United States, 347 U. S. 227, 228-230 (1954) (bribe offered to juror). See also Smith v. Phillips, 455 U. S. 209 (1982) (juror in criminal trial had submitted an application for employment at the District Attorney’s office). In situations that did not fall into this exception for external influence, however, the Court adhered to the common-law rule against admitting juror testimony to impeach a verdict. McDonald v. Pless, 238 U. S. 264 (1915); Hyde v. United States, 225 U. S. 347, 384 (1912).
Lower courts used this external/internal distinction to identify those instances in which juror testimony impeaching a verdict would be admissible. The distinction was not based on whether the juror was literally inside or outside the jury room when the alleged irregularity took place; rather, the distinction was based on the nature of the allegation. Clearly a rigid distinction based only on whether the event took place inside or outside the jury room would have been quite unhelpful. For example, under a distinction based on location a juror could not testify concerning a newspaper read inside the jury room. Instead, of course, this has been considered an external influence about which juror testimony is admissible. See United States v. Thomas, 463 F. 2d 1061 (CA7 1972). Similarly, under a rigid locational distinction jurors could be regularly required to testify after the verdict as to whether they heard and comprehended the judge’s instructions, since the charge to the jury takes place outside the jury room. Courts wisely have treated allegations of a juror’s inability to hear or comprehend at trial as an internal matter. See Government of the Virgin Islands v. Nicholas, 759 F. 2d 1073 (CA3 1985); Davis v. United States, 47 F. 2d 1071 (CA5 1931) (rejecting juror testimony impeaching verdict, including testimony that jurors had not heard a particular instruction of the court).
Most significant for the present case, however, is the fact that lower federal courts treated allegations of the physical or mental incompetence of a juror as “internal” rather than “external” matters. In United States v. Dioguardi, 492 F. 2d 70 (CA2 1974), the defendant Dioguardi received a letter from one of the jurors soon after the trial in which the juror explained that she had “eyes and ears that... see things before [they] happen,” but that her eyes “are only partly open” because “a curse was put upon them some years ago.” Id., at 75. Armed with this letter and the opinions of seven psychiatrists that the letter suggested that the juror was suffering from a psychological disorder, Dioguardi sought a new trial or in the alternative an evidentiary hearing on the juror’s competence. The District Court denied the motion and the Court of Appeals affirmed. The Court of Appeals noted “[t]he strong policy against any post-verdict inquiry into a juror’s state of mind,” id., at 79, and observed:
“The quickness with which jury findings will be set aside when there is proof of tampering or external influence,... parallel the reluctance of courts to inquire into jury deliberations when a verdict is valid on its face.... Such exceptions support rather than undermine the rationale of the rule that possible internal abnormalities in a jury will not be inquired into except ‘in the gravest and most important cases.’” Id., at 79, n. 12, quoting McDonald v. Pless, supra, at 269 (emphasis in original).
The Court of Appeals concluded that when faced with allegations that a juror was mentally incompetent, “courts have refused to set aside a verdict, or even to make further inquiry, unless there be proof of an adjudication of insanity or mental incompetence closely in advance... of jury service,” or proof of “a closely contemporaneous and independent post-trial adjudication of incompetency.” 492 F. 2d, at 80. See also Sullivan v. Fogg, 613 F. 2d 465, 467 (CA2 1980) (allegation of juror insanity is internal consideration); United States v. Allen, 588 F. 2d 1100, 1106, n. 12 (CA5 1979) (noting “specific reluctance to probe the minds of jurors once they have deliberated their verdict”); United States v. Pellegrini, 441 F. Supp. 1367 (ED Pa. 1977), aff’d, 586 F. 2d 836 (CA3), cert. denied, 439 U. S. 1050 (1978) (whether juror sufficiently understood English language was not a question of “extraneous influence”). This line of federal decisions was reviewed in Government of the Virgin Islands v. Nicholas, supra, in which the Court of Appeals concluded that a juror’s allegation that a hearing impairment interfered with his understanding of the evidence at trial was not a matter of “external influence.” Id., at 1079.
Substantial policy considerations support the common-law rule against the admission of jury testimony to impeach a verdict. As early as 1915 this Court explained the necessity of shielding jury deliberations from public scrutiny:
“[L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation — to the destruction of all frankness and freedom of discussion and conference.” McDonald v. Pless, 238 U. S., at 267-268.
See also Mattox v. United States, 146 U. S. 140 (1892).
The Court’s holdings requiring an evidentiary hearing where extrinsic influence or relationships have tainted the deliberations do not detract from, but rather harmonize with, the weighty government interest in insulating the jury’s deliberative process. See Smith v. Phillips, 455 U. S. 209 (1982) (juror in criminal trial had submitted an application for employment at the District Attorney’s office); Remmer v. United States, 347 U. S. 227 (1954) (juror reported attempted bribe during trial and was subjected to investigation). The Court’s statement in Remmer that “[t]he integrity of jury proceedings must not be jeopardized by unauthorized invasions,” id., at 229, could also be applied to the inquiry petitioners seek to make into the internal processes of the jury.
There is little doubt that postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it. Allegations of juror misconduct, incompetency, or inattentiveness, raised for the first time days, weeks, or months after the verdict, seriously disrupt the finality of the process. See, e. g., Government of the Virgin Islands v. Nicholas, supra, at 1081 (one year and eight months after verdict rendered, juror alleged that hearing difficulties affected his understanding of the evidence). Moreover, full and frank discussion in the jury room, jurors’ willingness to return an unpopular verdict, and the community’s trust in a system that relies on the decisions of laypeople would all be undermined by a barrage of postverdict scrutiny of juror conduct. See Note, Public Disclosures of Jury Deliberations, 96 Harv. L. Rev. 886, 888-892 (1983).
Federal Rule of Evidence 606(b) is grounded in the common-law rule against admission of jury testimony to impeach a verdict and the exception for juror testimony relating to extraneous influences. See Government of the Virgin Islands v. Gereau, 523 F. 2d 140, 149, n. 22 (CA3 1975); S. Rep. No. 93-1277, p. 13 (1974) (observing that Rule 606(b) “embodied long-accepted Federal law”).
Rule 606(b) states:
“Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.”
Petitioners have presented no argument that Rule 606(b) is inapplicable to the juror affidavits and the further inquiry they sought in this case, and, in fact, there appears to be virtually no support for such a proposition. See 3 D. Louisell & C. Mueller, Federal Evidence § 287, pp. 121-125 (1979) (under Rule 606(b), “proof to the following effects is excludable... :... that one or more jurors was inattentive during trial or deliberations, sleeping or thinking about other matters”); cf. Note, Impeachment of Verdicts by Jurors—Rule of Evidence 606(b), 4 Wm. Mitchell L. Rev. 417, 430-431, and n. 88 (1978) (observing that under Rule 606(b), “juror testimony as to... juror intoxication probably will be inadmissible”; note author suggests that “[o]ne possibility is for the courts to determine that certain acts, such as a juror becoming intoxicated outside the jury room, simply are not within the rule,” but cites no authority in support of the suggestion). Rather, petitioners argue that substance abuse constitutes an improper “outside influence” about which jurors may testify under Rule 606(b). In our view the language of the Rule cannot easily be stretched to cover this circumstance. However severe their effect and improper their use, drugs or alcohol voluntarily ingested by a juror seems no more an “outside influence” than a virus, poorly prepared food, or a lack of sleep.
In any case, whatever ambiguity might linger in the language of Rule 606(b) as applied to juror intoxication is resolved by the legislative history of the Rule. In 1972, following criticism of a proposed rule that would have allowed considerably broader use of juror testimony to impeach verdicts, the Advisory Committee drafted the present version of Rule 606(b). Compare 51 F. R. D. 315, 387 (1971) with 56 F. R. D. 183, 265 (1972); see 117 Cong. Rec. 33642, 33645 (1971) (letter from Sen. McClellan to Advisory Committee criticizing earlier proposal); id., at 33655 (letter from Department of Justice to Advisory Committee criticizing earlier proposal and arguing that “[sjtrong policy considerations continue to support the rule that jurors should not be permitted to testify about what occurred during the course of their deliberations”). This Court adopted the present version of Rule 606(b) and transmitted it to Congress.
The House Judiciary Committee described the effect of the version of Rule 606(b) transmitted by the Court as follows:
“As proposed by the Court, Rule 606(b) limited testimony by a juror in the course of an inquiry into the validity of a verdict or indictment. He could testify as to the influence of extraneous prejudicial information brought to the jury’s attention (e. g. a radio newscast or a newspaper account) or an outside influence which improperly had been brought to bear upon a juror (e. g. a threat to the safety of a member of his family), but he could not testify as to other irregularities which occurred in the jury room. Under this formulation a quotient verdict could not be attacked through the testimony of juror, nor could a juror testify to the drunken condition of a fellow juror which so disabled him that he could not participate in the jury’s deliberations.” H. R. Rep. No. 93-650, pp. 9-10 (1973) (emphasis supplied).
The House Judiciary Committee, persuaded that the better practice was to allow juror testimony on any “objective juror misconduct,” amended the Rule so as to comport with the more expansive versions proposed by the Advisory Committee in earlier drafts, and the House passed this amended version.
The Senate Judiciary Committee did not voice any disagreement with the House’s interpretation of the Rule proposed by the Court, or the version passed by the House. Indeed, the Senate Report described the House version as “considerably broader” than the version proposed by the Court, and noted that the House version “would permit the impeachment of verdicts by inquiry into, not the mental processes of the jurors, but what happened in terms of conduct in the jury room.” S. Rep. No. 93-1277, p. 13 (1974). With this understanding of the differences between the two versions of Rule 606(b) — an understanding identical to that of the House — the Senate decided to reject the broader House version and adopt the narrower version approved by the Court. The Senate Report explained:
“[The House version’s] extension of the ability to impeach a verdict is felt to be unwarranted and ill-advised.
“The rule passed by the House embodies a suggestion by the Advisory Committee of the Judicial Conference that is considerably broader than the final version adopted by the Supreme Court, which embodied long-accepted Federal law. Although forbidding the impeachment of verdicts by inquiry into the jurors’ mental processes, it deletes from the Supreme Court version the proscription against testimony ‘as to any matter or statement occurring during the course of the jury’s deliberations.’ This deletion would have the effect of opening verdicts up to challenge on the basis of what happened during the jury’s internal deliberations, for example, where a juror alleged that the jury refused to follow the trial judge’s instructions or that some of the jurors did not take part in deliberations.
“Permitting an individual to attack a jury verdict based upon the jury’s internal deliberations has long been recognized as unwise by the Supreme Court.
“As it stands then, the rule would permit the harassment of former jurors by losing parties as well as the possible exploitation of disgruntled or otherwise badly-motivated ex-jurors.
“Public policy requires a finality to litigation. And common fairness requires that absolute privacy be preserved for jurors to engage in the full and free debate necessary to the attainment of just verdicts. Jurors will not be able to function effectively if their deliberations are to be scrutinized in post-trial litigation. In the interest of protecting the jury system and the citizens who make it work, rule 606 should not permit any inquiry into the internal deliberations of the jurors.” Id., at 13-14.
The Conference Committee Report reaffirms Congress’ understanding of the differences between the House and Senate versions of Rule 606(b): “[T]he House bill allows a juror to testify about objective matters occurring during the jury’s deliberation, such as the misconduct of another, juror or the reaching of a quotient verdict. The Senate bill does not permit juror testimony about any matter or statement occurring during the course of the jury’s deliberations.” H. R. Conf. Rep. No. 93-1597, p. 8 (1974). The Conference Committee adopted, and Congress enacted, the Senate version of Rule 606(b).
Thus, the legislative history demonstrates with uncommon clarity that Congress specifically understood, considered, and rejected a version of Rule 606(b) that would have allowed jurors to testify on juror conduct during deliberations, including juror intoxication. This legislative history provides strong support for the most reasonable reading of the language of Rule 606(b) — that juror intoxication is not an “outside influence” about which jurors may testify to impeach their verdict.
Finally, even if Rule 606(b) is interpreted to retain the common-law exception allowing postverdict inquiry of juror incompetence in cases of “substantial if not wholly conclusive evidence of incompetency,” Dioguardi, 492 F. 2d, at 80, the showing made by petitioners falls far short of this standard. The affidavits and testimony presented in support of the first new trial motion suggested, at worst, that several of the jurors fell asleep at times during the afternoons. The District Court Judge appropriately considered the fact that he had “an unobstructed view” of the jury, and did not see any juror sleeping. App. 147-149, 167-168; see Government of the Virgin Islands v. Nicholas, 759 F. 2d, at 1077 (“[I]t was appropriate for the trial judge to draw upon his personal knowledge and recollection in considering the factual allegations... that related to events that occurred in his presence”). The juror affidavit submitted in support of the second new trial motion was obtained in clear violation of the District Court’s order and the court’s local rule against juror interviews, MD Fla. Rule 2.04(c); on this basis alone the District Court would have been acting within its discretion in disregarding the affidavit. In any case, although the affidavit of juror Hardy describes more dramatic instances of misconduct, Hardy’s allegations of incompetence are meager. Hardy stated that the alcohol consumption he engaged in
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_counsel2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
LOVE v. UNITED STATES.
No. 11503.
Circuit Court of Appeals, Eighth Circuit
Nov. 21, 1939.
Rehearing Denied Dec. 9, 1939.
Harold R. Love, pro se.
Linus J. Hammond, Asst. U. S. Atty., of St. Paul, Minn. (Victor E. Anderson, U. S. Atty., of St. Paul, Minn., on the brief), for appellee.
Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.
WOODROUGH, Circuit Judge.
This action was brought against the United States of America by Harold R. Love to obtain an adjudication and judgment by the court compelling the United States to take him into its employment, and to pay him certain sums of money (less than ten thousand dollars) as compensation for certain periods during which he claims he had a legal right to government employment but such right was wrongfully denied him. He filed his suit and appeared in the District Court without counsel, and his very voluminous complaint lacks the formality and coherence usually found in pleadings. It contains, however, specific allegations that jurisdiction in the case is conferred upon the District Court by the provisions of the Tucker Act, 28 U.S.C.A. § 41 (20), and that the cause of action arises under the Acts of Congress and lawful Regulations pursuant thereto.
The United States urged no point against the complaint as to any defect of form, but moved to dismiss it upon the grounds (1) that the court was without jurisdiction of the subject matter, and (2) that there was a failure to state facts sufficient to constitute a cause of action. After hearing upon briefs and oral arguments, the motion was “in all respects granted” and the action was dismissed for want of jurisdiction. Mr. Love has appealed, asserting error in the ruling and judgment.
It appears from the complaint that Mr. Love is a native-born United States citizen and an honorably discharged veteran of the World War, and that after his army discharge he was employed under the Treasury Department of the United States from 1920 through 1923 in the capacity of “agent” or “inspector” at a salary of (apparently) $2,750 per annum. After the termination of that employment and in the year 1920, he took and successfully passed a civil service examination, receiving the classification of “auditor, accountant and -statistician”, but was never appointed or assigned to duty in such capacity. Since March 1933 he has been in actual need or classified as such, and from June, 1936, until August 22, 1938, he was employed upon Works Progress Administration Project 5191 in Minneapolis, Minnesota. He was discharged from that work on the last named date and has been unable to obtain private employment and has been without government employment since that time.
The complaint has been studied in all its parts, but as the controlling question for this court is whether the District Court had jurisdiction, it is not necessary to set out all the particulars. The prayer of the complaint is elaborated and discloses the theory upon which the jurisdiction was invoked. Upon consideration of the prayer, it is observed that in the initial paragraphs Mr. Love “demands that it be adjudged” (in substance) that by virtue of his preference rights as a World War veteran and the passing grade he obtained in his classified civil service examination in 1920, he became and has remained and now is entitled to and shall receive immediate employment under the Department of the Treasury; that payment for his services shall be made to him at the same rate he was receiving when he was employed as a revenue agent in the year 1923; and that he recover from the United States back pay at the same rate from March 13, 1936, until his employment begins under the order of the court in this case.
Following this prayer of the complaint, it is stated that if the court should not determine as thus prayed, then alternative relief was demanded. Such alternative re.lief is not related to employment of Mr. •Love under the Department of the Treasury, but to his employment under the Works Progress Administration. That part of the prayer will, therefore, be later and separately discussed. We consider first whether the court had jurisdiction to entertain the action against the United States to compel the employment of Mr. Love in the Department of the Treasury of the United States, or to award him a money judgment for pay during the period for which he asserts he had a right to be employed.
It is to be noted in the first place that Mr. Love has asserted no claim that he has ever had or now has any “title to office” in the government as the term “office” is understood and accepted. His contentions relate only to the alleged right to be employed in capacities distinct from and subordinate to those who hold “office”. He makes many charges against such officers and others subordinate to “officers” but superior to himself in the conduct of tfye “office” where he has worked and in other departments, and they are alleged to have acted arbitrarily and unlawfully in denying him employment. Certain disputes which have arisen on various occasions in the course of our history in respect to the tenure of “offices” and the power to make removals of incumbents or to replace them with other appointees, have called forth the utmost effort of the courts to find peaceful solution in law and reason. Several such controversies were recognized to be of far-reaching importance. They were justiciable and were settled upon profound consideration by judicial determination.
But such determination has always been rested upon the interpretation and application of the provisions of the constitution and federal enactments. It can not be predicated upon any judicial concept concerning an able-bodied, competent and willing man’s natural or inherent right to work. Unless a legal right has been defined and conferred by legislative authority, no justiciable controversy is present. The principles applicable are the same in the field of government work as in the broader field of private enterprise. The right to work at a particular employment must be shown to have become vested by law in the person asserting it. Shurtleff v. United States, 189 U.S. 311, 23 S.Ct. 535, 47 L.Ed. 828; Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160; Humphrey’s Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611.
Mr. Love contends that the preference provisions of the Civil Service Act, 5 U.S. C.A. § 631 et seq., as amended and supplemented by the Rules and Regulations, operate to confer the legal right upon him to have government employment and that they impose a reciprocal duty and obligation upon the government to give him employment which is enforceable in his favor in this action.
The'first sentence of the Veterans’ Preference Act, 5 U.S.C.A. § 35, was enacted in 1865, and the second in 1919. 5 U.S.C.A. § 37 was enacted in 1876, and although modifications in some details have been made and many lawful Rules and Regulations have been promulgated to effectuate the provisions of the law as amended, the nature of the privilege conferred upon honorably discharged veterans in the matter of their employment in the government service has not been changed. The intendment of the law was considered by the Supreme Court in 1900 in the case of Keim v. United States, 177 U.S. 290, 20 S.Ct. 574, 576, 44 L.Ed. 774. In that case it appeared that Keim was a Civil War veteran who had been discharged for inefficiency from the clerkship in the Department of the Interior to which he had been appointed. He instituted proceedings in the' United States Court of Claims, asserting his status as an honorably discharged veteran who had successfully passed the civil service examination. He requested determination that he had been discharged without any fault of his own and without just cause; that he was an efficient clerk and discharged his duties faithfully and efficiently and possessed the necessary business capacity for the proper discharge of the duties of his clerkship. He proved that other clerks of the same division were retained in the Department who were not veterans honorably discharged, and that still others lacking such preferred status were appointed on or about the day of his discharge. He sought compensation in damages for loss of his employment. The Court of Claims declined to make findings requested by Mr. Keim and dismissed his petition. On áppeal to the Supreme Court the decree of the Court of Claims was affirmed and the decision of the Supreme Court clearly establishes that the preferential provisions of the Civil Service Act, as they stood at the time of the decision, did not operate to confer any absolute right to work for the government such as is claimed by Mr. Love in this case. The court said: “No thoughtful .person questions the obligations which the nation is under to those who have done faithful service in its army or navy. Congress has generously provided for the discharge of those obligations in a system of* pensions more munificent than has ever before been known in the history of the world. But it would be an insult to the intelligence of Congress to suppose that it contemplated any degradation of the civil service by the appointment to or continuance in office of incompetent or • inefficient clerks simply because they had been honorably discharged from the military or naval service. The preference, and it is only a preference, is to be exercised as between those ‘equally qualified,’ * * *.”
The court found nothing in the statutory provisions to indicate that the duty of passing on the competency or qualifications of persons who apply for or who have obtained and are engaged in government employment had been taken away from the administrative officers or transferred to the courts. The court doubted whether “that is a duty which is strictly judicial in its nature.” It said: “It would seem strange that one having passed a civil service examination could challenge the rating made bthe commission, and ask the courts to review such rating, thus transferring from the commission, charged with the duty of exam-¡nation, to the courts a function which is, at least, more administrative than judicial; and if courts should not be called upon to supervise the results of a civil service examination equally inappropriate would be an investigation into the actual work done by the various clerks, a comparison of one with another as to competency, attention to duty, etc. These „are matters peculiarly within the province of those who are in charge of and superintending the departments, and until Congress by some special and direct legislation makes provision to the contrary, we are clear that they must be settled by those administrative officers.”
See also Longfellow v. Gudger, 57 App. D.C. 50, 16 F.2d 653; Platt v. Prince, 53 R. I. 492, 167 A. 540.
It is contended by Mr. Love that his case should be distinguished from the Keim case because in that case a record had been made in the Department in which Mr. Keim worked that Mr. Keim had been “discharged for inefficiency” and no such record has been made as to Mr. Love in the Department of the Treasury. Mr. Love’s complaint does not purport to disclose any of the circumstances attending the termination of his employment in that Department. It may have been voluntary on his part. But however his employment in the Department may have terminated in 1923, the same principles are applicable and controlling in both the Keim case and this case, and we do not find that any amendments have been made to the Civil Service Act which change the nature of the preference privileges due on account of military service since the decision in the Keim case was handed down. The power to exercise judgment and discretion there found to reside in the administrative officers remains with them and has not been “transferred to the courts”.
Mr. Love contends that a different conclusion, more favorable to him, may be drawn from the decision of the Supreme Court in Dismuke v. United States, 297 U. S. 167, 56 S.Ct. 400, 402, 80 L.Ed. 561. In that case Dismuke claimed to be a retired government employee in the classified civil service who had rendered thirty years service to the government. The Act of Congress by mandatory provision declared such retired government employee “shall be entitled to an annuity * * * payable from the civil service retirement and disability fund,” 5 U.S.C.A. § 736a, and the Director of Insurance having refused to allow Dismuke’s claim for the annuity, Dismuke brought suit for it against the United States under the Tucker Act. The Supreme Court held that the suit was maintainable. It was observed that the right of the employee to the annuity granted by mandatory Act of Congress was “inseparable from the correlative obligation of the employer, the United States” and it was held that the suit to recover’ the annuity was “upon a claim ‘founded upon O. law of Congress’ ”, and so was “within the jurisdiction conferred upon District Courts, as are suits to recover sums of money which administrative officers are directed by Act .of Congress to ‘pay’ or ‘repay.’ ”
Careful study of the decision discloses no support for Mr. Love’s contentions in respect to his claimed right to employment in the Treasury Department. No mandatory act of Congress compelled the United States or any of its officers to employ Mr. Love in the Treasury Department, and consequently neither the United States nor any of its officers was under an obligation to pay him compensation for failure to obtain employment in that Department which could be said to be “founded upon a law of Congress” comparable to the obligation of the United States to Mr. Dismuke shown in this case.
Mr. Love also urges that the Keim case and others in accord with it were decided prior to the passage of the Tucker Act, and that such enlargement of the judicial power results from the provisions of that Act as to justify jurisdiction in this case. Undoubtedly the United States does by the terms of the Act give its consent to be sued in the courts upon many claims which the courts were not theretofore empowered to entertain without special consent shown. But we find • nothing in the Act extending the judicial power to such supervision over administrative action as is involved in this action. The extent of and the limitations upon judicial review of administrative action are most clearly illustrated by the decision in the Dismuke case, above discussed, and the facts in this case do not bring it within the principles upon which jurisdiction was there sustained. We conclude that notwithstanding the Tucker Act, the administrative action and inaction resulting in Mr. Love’s unemployment remains “beyond review in the courts either by mandamus to reinstate him or by compelling payment of salary as though he had not been removed”. Keim v. United States, supra, 177 U.S. page 294, 20 S.Ct. page 575, 44 L.Ed. 774. The District Court, therefore, was entirely without jurisdiction to award Mr. Love any of the relief he prayed for in respect to compelling his employment in the Department of the Treasury or awarding him compensation that would have been payable to one employed in that Department of .the government.
Following that part of the prayer of Mr. Love’s complaint above set forth and in the next paragraphs it is prayed as alternative relief that it be adjudged (in substance) :
That plaintiff was entitled to be employed iipon the Works Progress Administration Project 5191 after August 22nd 1938 and is now entitled to such employment upon the successor project of Project 5191, either at the rate of pay he was receiving when he was discharged on that date or at the higher rate of pay given to one Paul Cox who was employed in his place, and that a recovery be awarded him for the period during which he was wrongfully denied employment under the Works Progress Administration.
Mr. Love’s complaint relating to his employment by the Works Progress Administration after he had been classified as a person in actual need, contains more details than were set forth in respect to his employment in the Department of the Treasury. It appears that the Works Progress Administration project on which Mr. Love was given employment had as its object the survey of Minneapolis, Minnesota, and he worked as a statistician and “Assistant in Charge of the Office”. His duties included computation and instruction in trigonometric functions and surveying calculations, assisting transit men in the field, making the survey computations used in the office for the compiling of maps and the checking of errors, and general office supervision. In the course of his checking for errors he became convinced that the survey was not being conducted properly for lack of an accurate base-line and for lack of astronomical observation on triangulation lines. He thought that the result of the errors would render the survey useless and had a conversation with the Superintendent of the project in which the matter was argued, the Superintendent being of the opinion that adjustments could be made. Mr. Love then, in company with a subordinate civil engineer who was in accord with him, took up the matter in a conversation with one Stanley Jacobson, who was in charge of all the “white collar” W. P. A. projects, and subsequent to the conversation he wrote Mr. Jacobson an extended letter of suggestion and criticism about the survey project and the way in which it had been and was being conducted. Charges were made by Mr. Love to Mr. Jacobson that large sums of money were being wasted on the project and that further sums would be lost unless his judgment was followed. Shortly after-wards Mr. Love’s resignation from the project was requested by the Superintendent and refused by Mr. Love. It is alleged that the Superintendent found no fault with the work which had been and was being done by Mr. Love under his employment and that an offer was made to Mr. Love to change him to the work on another project and that Mr. Love refused the offer. Mr. Love’s employment on the project was terminated by formal notice known as W. P. A. Form 403 Revised, and the cause assigned for the discharge was “This man not wanted on this project”. Although the communications, oral and written, between Mr. Love and the Superintendent of the project might suggest at least some proper considerations prompting the Superintendent, in the exercise of his discretion, to issue the termination order, it is directly charged in the complaint that there 'was no just cause for the discharge and that Mr. Love was entirely without fault and that he was at all times willing, qualified and able to proceed with the work that he was engaged in and that his services were needed and necessary for the proper execution of the project and that he had refused to resign.
Thus it is apparent that Mr. Love’s action in respect to the matter of his employment under the Works Progress Administration presents the element of involuntary termination which was not alleged to be present in the matter of his employment in the Department of the Treasury.
Our study of the Acts of Congress and the Rules and Regulations governing the Works Progress Administration convinces that no provision can be found indicating an intent on the part of Congress that those who are authorized to employ and discharge employees in the prosecution of the projects shall perform their function capriciously, arbitrarily or wantonly. The Rules and Regulations especially are designed and intended to assure against such action and elaborate provision is made for hearing, passing upon and reviewing complaints and grievances within the Administration.
On the other hand, there is no claim that Mr. Love’s employment was for the duration of any term, and it has long been settled law that the power to make selection or appointment implies and carries with it the power to dismiss. Burnap v. United States, 252 U.S. 512, 40 S.Ct. 374, 64 L.Ed. 692; Keim v. United States, supra. There can be no question that the authority to select and appoint qualified and suitable persons to carry on the work of the W.P.A. projects has been conferred upon and rested in the Administration to which the execution of the work has been entrusted under the Acts of Congress. The power to dispense with unneeded or unsatisfactory services must also be recognized to reside in the same Administration. No power of supervision over such Administrative action is lodged in the courts. In re Hennen, 13 Pet. 230, 10 L.Ed. 138; Keim v. United States, supra; United States ex rel. Palmer v. Lapp, 6 Cir., 244 F. 377; Block v. Sassman, D.C., 26 F. Supp. 105.
Mr. Love has alleged in his complaint, however that he has exhausted all administrative remedies and on that ground he claims that there is jurisdiction in the court to inquire into the facts and circumstances of his discharge and award him a judgment against the United States if he should be found to have been without fault in his employment. He relies on this point "largely upon Dismuke v. United States, above discussed.
As we observed concerning that case, Dismuke had a claim against the United States founded upon an act of Congress which in mandatory terms conferred upon him the right to receive and upon the United States the correlative obligation to pay a certain annuity. It was denied him by the ruling of the Director of Insurance, and on review by the Board of Veterans’ Appeals. The United States contended that such ruling was conclusive against Dismuke, but it appeared that the ruling and determination of the administrative authority had turned upon a question of law. Accordingly, in Dismuke’s suit against the United States for his annuity under the Tucker Act, the Supreme Court held that the “power of the administrative officer will not, in the absence of a plain command, be deemed to extend to the denial of a right which the statute Creates, and to which the claimant, upon facts found or admitted by the administrative officer, is entitled.” The court concluded that the administrative ruling upon the question of law was open to judicial review in Dismuke’s action.
But in the instant case there was no absolute right to work conferred upon Mr. Love by mandatory Act of Congress comparable to the right to the annuity granted to Dismuke, either because of Mr. Love’s preference privileges or because he had passed examination and had obtained some employment under the Public Works Administration. Neither can it be found from the complaint herein that there has been any final administrative decision turning upon any defined question of law based upon facts found or admitted to be true by administrative authority or which could be reviewed by the court in this case. The merits of Mr. Love’s disputes with his superiors cannot be passed by the court without assuming a supervision over the course of administering the W. P. A. project. The complaint discloses that Mr. Love disagrees with those in charge as to the degree of accuracy necessary to make the survey valuable and as to whether adjustments are possible. This and other disagreements disclosed may figure in the statement charged to the supervisor and denied by Mr. Love, that the project had a limited use for a man of Mr. Love’s particular training and capacity. Such matters are for determination within the Administration. The decision of the Supreme Court in the Keim case is as fully controlling against the jurisdiction in the matter of the employment in and discharge from the W. P. A. employment as in the matter of the employment in the Treasury Department.
In the case of Eberlein v. United States, 257 U.S. 82, 42 S.Ct. 12, 66 L.Ed. 140, an employee of the Customs Service of the Treasury Department was removed upon certain charges preferred against him. Upon subsequent re-investigation it was reported by the Attorney General and the Supervisor of Customs that the charges had not been sustained, and the President caused Eberlein to be reinstated. He sued the United States in the Court of Claims for his salary for the time he was out of employment. The Court of Claims stated in its opinion .that the subsequent investigation had established Eberlein’s innocence but it denied him any recovery. The Supreme Court in affirming, stated:
“There can be no question, from the findings in this case, that the plaintiff had the benefit of a hearing according to the regulations then in force. * * * But the things required by law and regulations were done, and the discretion of the authorized officers was exercised as required by law. It is settled that in such cases the action of executive officers is not subject to revision in the courts. Keim v. United States, 177 U.S. 290, 20 S.Ct. 574, 44 L.Ed. 774.
“The order of the President could not have the effect of reinstating the plaintiff to the office from which he was removed. The power of appointment and removal was in the Secretary of the Treasury. It was 'within the power of Congress to confer this authority on the Secretary. Burnap v. United States, 252 U.S. 512, 40 S.Ct. 374, 64 L.Ed. 692.”
In Medkirk v. United States, 44 Ct.Cl. 469, the Court of Claims held that discretion in discharging as to the determination of who is “equally qualified” is executed for the President through the executive departments and is not to be reviewed by the courts. In Miller v. United States, 45 Ct.Cl. 509, 514, et seq., it held that the determination of the individual with authority to discharge was final. In this case an individual who was discharged took up his case with the Civil Service Commission and it determined that the discharge was wrongful. The employee then brought his action for damages, but was denied relief on the ground that the court would not go behind the authority of the government officer who had the power to discharge. See 65 C.J. 1296, Sec. 75.
Mr. Love has also based contentions upon the provisions of the Declaratory Judgment Act, 28 U.S.C.A. § 400. It is argued (in effect) that even if there was no jurisdiction in the Court over the suit to require the United States to employ Mr. Love or directly to award a judgment for compensation for time when it is claimed he ought to have been employed, still jurisdiction to proceed in the case and declare rights in his favor may be found under that Act. We have given the argument consideration but are persuaded that the Act does not extend the consent of the United States to be sued to suits in vyhich the causes o,f action presented are not of such -a nature as to be justiciable in the courts. The Act makes no mention of suits against the United States, nor does it give any indication of intention to broaden judicial supervision over the executive or administrative departments of the government. As the Supreme Court said in United States v. West Virginia, 295 U.S. 463, 55 S.Ct. 789, 793, 79 L.Ed. 1546, “It does not purport to alter the character of the controversies which are the subject of the judicial power under the Constitution”.
In suits against the United States the judgment of the court must necessarily be largely declaratory in its nature because the usual award of process or execution is inappropriate. But the Act does not create new substantive rights. Ohio Casualty Ins. Co. v. Marr, 10 Cir., 98 F.2d 973, 975; Board of Commissioners v. Cockrell, 5 Cir., 91 F.2d 412. It is essentially a procedural statute. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000; Aetna Casualty & S. Co. v. Quarles, 4 Cir., 92 F.2d 321; Putnam v. Ickes, 64 App.D.C. 339, 78 F. 2d 223; Southern Pac. Co. v. McAdoo, 9 Cir., 82 F.2d 121, 122; Gully v. Interstate Natural Gas Co., 5 Cir., 82 F.2d 145, 149; Borchard, The Federal Declaratory Judgments Act, 21 Va.L.Rev. 35, 39. The controversy must be one which is appropriate for judicial determination. Aetna Life Ins. Co. v. Haworth, supra; Stephenson v. Equitable Life Assur. Soc., 4 Cir., 92 F.2d 406, 409; Bradley Lumber Co. v. National Labor Relations Board, 5 Cir., 84 F.2d 97. See Wilson & Co. v. Gates, 8 Cir., 90 F.2d 247.
Other contentions argued have been found to be without merit. We conclude that the .court below was without jurisdiction to review the administrative action or omission to act in respect to Mr. Love’s employment, and was without jurisdiction to enter any judgment or adjudication in his favor or against the United States.
Affirmed.
See 5 U.S.C.A. §§ 35 and 37, and 35a and 37a, providing that the preference shall not be extended to the spouses of married employees.
See Civil Service Rules amended to June 30, 1937; Rule VI Sec. 2, Eligible registers; Rule VII Certification; Rule IX Reinstatement.
See Handbook of Procedure for State and District Administration, revised February 10, 1938, Ch. XIV Section 10.
See and compare 18 R.C.L. 509, Sec. 19; 11 A.L.R. 469 and 100 A.L.R. 834 (notes).
See and compare cases and comment Tiffany v. Pacific Sewer Pipe Co., 180 Cal. 700, 182 P. 428, 6 A.L.R. 1497, 1502, 1503.
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_lcdisposition
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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 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.
GOLDFARB et ux. v. VIRGINIA STATE BAR et al.
No. 74-70.
Argued March 25, 1975
Decided June 16, 1975
Burger, C. J., delivered the opinion of the Court, in which all other Members joined except Powell, J., who took no part in the consideration or decision of the case.
Alan B. Morrison argued the cause and filed briefs for petitioners.
Andrew P. Miller, Attorney General of Virginia, argued the cause for respondent Virginia State Bar. With him on the brief were Anthony F. Troy, Deputy Attorney General, and Stuart H. Dunn, Assistant Attorney General. Lewis T. Booker argued the cause for respondent Fairfax County Bar Assn. With him on the brief was John H. Shenefield.
Solicitor General Bork argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Kauper, Gerald P. Norton, and Howard E. Shapiro.
Eleanor M. Fox filed a brief for the Association of the Bar of the City of New York as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by James D. Fellers and H. Blair White for the American Bar Assn.; by Richard C. McFarlain for the National Organization of Bar Counsel; by Leroy Jeffers for the State Bar of Texas; by Warren H. Resh for the State Bar of Wisconsin; by E. Robert Wallach and Walter J. Robinson for the Bar Association of San Francisco; and by Owen Roll and Peter M. Sfikas for the American Dental Assn.
Mr. Chief Justice Burger
delivered the opinion of. the Court.
We granted certiorari to decide whether a minimum-fee schedule for lawyers published by the Fairfax County Bar Association and enforced by the Virginia State Bar violates § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1. The Court of Appeals held that, although the fee schedule and enforcement mechanism substantially restrained competition among lawyers, publication of the schedule by the County Bar was outside the scope of the Act because the practice of law is not “trade or commerce,” and enforcement of the schedule by the State Bar was exempt from the Sherman Act as state action as defined in Parker v. Brown, 317 U. S. 341 (1943).
I
In 1971 petitioners, husband and wife, contracted to buy a home in Fairfax County, Va. The financing agency required them to secure title insurance; this required a title examination, and only a member of the Virginia State Bar could legally perform that service. Petitioners therefore contacted a lawyer who quoted them the precise fee suggested in a minimum-fee schedule published by respondent Fairfax County Bar Association; the lawyer told them that it was his policy to keep his charges in line with the minimum-fee schedule which provided for a fee of 1% of the value of the property involved. Petitioners then tried to find a lawyer who would examine the title for less than the fee fixed by the schedule. They sent letters to 36 other Fairfax County lawyers requesting their fees. Nineteen replied, and none indicated that he would charge less than the rate fixed by the schedule; several stated that they knew of no attorney who would do so.
The fee schedule the lawyers referred to is a list of recommended minimum prices for common legal services. Respondent Fairfax County Bar Association published the fee schedule although, as a purely voluntary association of attorneys, the County Bar has no formal power to enforce it. Enforcement has been provided by respondent Virginia State Bar which is the administrative agency through which the Virginia Supreme Court regulates the practice of law in that State; membership in the State Bar is required in order to practice in Virginia. Although the State Bar has never taken formal disciplinary action to compel adherence to any fee schedule, it has published reports condoning fee schedules, and has issued two ethical opinions indicating that fee schedules cannot be ignored. The most recent opinion states that “evidence that an attorney habitually charges less than the suggested minimum fee schedule adopted by his local bar Association, raises a presumption that such lawyer is guilty of misconduct.
Because petitioners could not find a lawyer willing to charge a fee lower than the schedule dictated, they had their title examined by the lawyer they had first contacted. They then brought this class action against the State Bar and the County Bar alleging that the operation of the minimum-fee schedule, as applied to fees for legal services relating to residential real estate transactions, constitutes price fixing in violation of § 1 of the Sherman Act. Petitioners sought both injunctive relief and damages.
After a trial solely on the issue of liability the District Court held that the minimum-fee schedule violated the Sherman Act. 355 F. Supp. 491 (ED Va. 1973). The court viewed the fee-schedule system as a significant reason for petitioners’ failure to obtain legal services for less than the minimum fee,, and it rejected the County Bar’s contention that as a “learned profession” the practice of law is exempt from the Sherman Act.
Both respondents argued that their actions were also exempt from the Sherman Act as state action. Parker v. Brown, supra. The District Court agreed that the Virginia State Bar was exempt under that doctrine because it is an administrative agency of the Virginia Supreme Court, and more important, because its “minor role in this matter . . . derived from the judicial and ‘legislative command of the State and was not intended to operate or become effective without that command.’ ” The County Bar, on the other hand, is a private organization and was under no compulsion to adopt the fee schedule recommended by the State Bar. Since the County Bar chose its own course of conduct the District Court held that the antitrust laws “remain in full force and effect as to it.” The court enjoined the fee schedule, 15 TJ. S. C. i 26, and set the case down for trial to ascertain damages. 15 U. S. C. § 15.
The Court of Appeals reversed as to liability. 497 F. 2d 1 (CA4 1974). Despite its conclusion that it “is abundantly clear from the record before us that the fee schedule and the enforcement mechanism supporting it act as a substantial restraint upon competition among attorneys practicing in Fairfax County,” id., at 13, the Court of Appeals held the State Bar immune under Parker v. Brown, supra, and held the County Bar immune because the practice of law is not “trade or commerce” under the Sherman Act. There has long been judicial recognition of a limited exclusion of “learned professions” from the scope of the antitrust laws, the court said; that exclusion is based upon the special form of regulation imposed upon the professions by the States, and the incompatibility of certain competitive practices with such professional regulation. It concluded that the promulgation of a minimum-fee schedule is one of “those matters with respect to which an accord must be reached between the necessities of professional regulation and the dictates of the antitrust laws.” The accord reached by that court was to hold the practice of law exempt from the antitrust laws.
Alternatively, the Court of Appeals held that respondents’ activities did not have sufficient effect on interstate commerce to support Sherman Act jurisdiction. Petitioners had argued that the fee schedule restrained the business of financing and insuring home mortgages by inflating a component part of the total cost of housing, but the court concluded that a title examination is generally a local service, and even where it is part of a transaction which crosses state lines its effect on commerce is only “incidental,” and does not justify federal regulation.
We granted certiorari, 419 U. S. 963 (1974), and are thus confronted for the first time with the question of whether the Sherman Act applies to services performed by attorneys in examining titles in connection with financing the purchase of real estate.
II
Our inquiry can be divided into four steps: did respondents engage in price fixing? If so, are their activities in interstate commerce or do they affect interstate commerce? If so, are the activities exempt from the Sherman Act because they involve a “learned profession?” If not, are the activities “state action” within the meaning of Parker v. Brown, 317 U. S. 341 (1943), and therefore exempt from the Sherman Act?
A
The County Bar argues that because the fee schedule is merely advisory, the schedule and its enforcement mechanism do not constitute price fixing. Its purpose, the argument continues, is only to provide legitimate information to aid member lawyers in complying with Virginia professional regulations. Moreover, the County Bar contends that in practice the schedule has not had the effect of producing fixed fees. The facts found by the trier belie these contentions, and nothing in the record suggests these findings lack support.
A purely advisory fee schedule issued to provide guidelines, or an exchange of price information without a showing of an actual restraint on trade, would present us with a different question, e. g., American Column Co. v. United States, 257 U. S. 377 (1921); Maple Flooring Assn. v. United States, 268 U. S. 563, 580 (1925). But see United States v. National Assn. of Real Estate Boards, 339 U. S. 485, 488-489, 495 (1950). The record here, however, reveals a situation quite different from what would occur under a purely advisory fee schedule. Here a fixed, rigid price floor arose from respondents’ activities: every lawyer who responded to petitioners’ inquiries adhered to the fee schedule, and no lawyer asked for additional information in order to set an individualized fee. The price information disseminated did not concern past standards, cf. Cement Mfrs. Protective Assn. v. United States, 268 U. S. 588 (1925), but rather minimum fees to be . charged in future transactions, and those minimum rates were increased over time. The fee schedule was enforced through the prospect of professional discipline from the State Bar, and the desire of attorneys to comply with announced professional norms, see generally American Column Co., supra, at 411; the motivation to conform was reinforced by the assurance that other lawyers would not compete by underbidding. This is not merely a case of an agreement that may be inferred from an exchange of price information, United States v. Container Corp., 393 U. S. 333, 337 (1969), for here a naked agreement was clearly shown, and the effect on prices is plain. Id., at 339 (Fortas, J., concurring).
Moreover, in terms of restraining competition and harming consumers, like petitioners the price-fixing activities found here are unusually damaging. A title examination is indispensable in the process of financing a real estate purchase, and since only an attorney licensed to practice in Virginia may legally examine a title, see n. 1, supra, consumers could not turn to alternative sources for the necessary service. All attorneys, of course, were practicing under the constraint of the fee schedule. See generally United States v. Container Corp., supra, at 337. The County Bar makes much of the fact that it is a voluntary organization; however, the ethical opinions issued by the State Bar provide that any lawyer, whether or not a member of his county bar association, may be disciplined for “habitually charging] less than the suggested minimum fee schedule adopted by his local bar Association . . . See supra, at 777-778, and n. 4. These factors coalesced to create a pricing system that consumers could not realistically escape. On this record respondents’ activities constitute a classic illustration of price fixing.
B
The County Bar argues, as the Court of Appeals held, that any effect on interstate commerce caused by the fee schedule’s restraint on legal services was incidental and remote. In its view the legal services, which are performed wholly intrastate, are essentially local in náture and therefore a restraint with respect to them can never substantially affect interstate commerce. Further, the County Bar maintains, there was no showing here that the fee schedule and its enforcement mechanism increased fees, and that even if they did there was no showing that such an increase deterred any prospective homeowner from buying in Fairfax County.
These arguments misconceive the nature of the transactions at issue and the place legal services play in those transactions. As the District Court found, “a significant portion of funds furnished for the purchasing of homes in Fairfax County comes from without the State of Virginia,” and “significant amounts of loans on Fairfax County real estate are guaranteed by the United States Veterans Administration and Department of Housing and Urban Development, both headquartered in the District of Columbia.” Thus in this class action the transactions which create the need for the particular legal services in question frequently are interstate transactions. The necessary connection between the interstate transactions and the restraint of trade provided by the minimum-fee schedule is present because, in a practical sense, title examinations are necessary in real estate transactions to assure a lien on a valid title of the borrower. In financing realty purchases lenders require, “as a condition of making the loan, that the title to the property involved be examined . . . Thus a title examination is an integral part of an interstate transaction and this Court has long held that
“there is an obvious distinction to be drawn between a course of conduct wholly within a state and conduct which is an inseparable element of a larger program dependent for its success upon activity which affects commerce between the states.” United States v. Frankfort Distilleries, 324 U. S. 293, 297 (1945).
See United States v. Yellow Cab Co., 332 U. S. 218, 228-229 (1947).
Given the substantial volume of commerce involved, and the inseparability of this particular legal service from the interstate aspects of real estate transactions, we conclude that interstate commerce has been sufficiently affected. See Montague & Co. v. Lowry, 193 U. S. 38, 45-46 (1904); United States v. Women’s Sportswear Assn., 336 U. S. 460, 464-465 (1949).
The fact that there was no showing that home buyers were discouraged by the challenged activities does not mean that interstate commerce was not affected. Otherwise, the magnitude of the effect would control, and our cases have shown that, once an effect is shown, no specific magnitude need be proved. E. g., United States v. McKesson & Robbins, Inc., 351 U. S. 305, 310 (1956). Nor was it necessary for petitioners to prove that the fee schedule raised fees. Petitioners clearly proved that the fee schedule fixed fees and thus “deprive [d] purchasers or consumers of the advantages which they derive from free competition.” Apex Hosiery Co. v. Leader, 310 U. S. 469, 501 (1940). See United States v. Socony-Vacuum Oil Co., 310 U. S. 150 (1940).
Where, as a matter of law or practical necessity, legal services are an integral part of an interstate transaction, a restraint on those services may substantially affect commerce for Sherman Act purposes. Of course, there may be legal services that involve interstate commerce in other fashions, just as there may be legal services that have no nexus with interstate commerce and thus are beyond the reach of the Sherman Act.
C
The County Bar argues that Congress never intended to include the learned professions within the terms “trade or commerce” in § 1 of the Sherman Act, and therefore the sale of professional services is exempt from the Act. No explicit exemption or legislative.history is provided to support this contention; rather, the existence of state regulation seems to be its primary basis. Also, the County Bar maintains that competition is inconsistent with the practice of a profession because enhancing profit is not the goal of professional activities; the goal is to provide services necessary to the community. That, indeed, is the classic basis traditionally advanced to distinguish professions from trades, businesses, and other occupations, but it loses some of its force when used to support the fee control activities involved here.
In arguing that learned professions are not “trade or commerce” the County Bar seeks a total exclusion from antitrust regulation. Whether state regulation is active or dormant, real or theoretical, lawyers would be able to adopt anticompetitive practices with impunity. We cannot find support for the proposition that Congress intended any such sweeping exclusion. The nature of an occupation, standing alone, does not provide sanctuary from the Sherman Act, Associated Press v. United States, 326 U. S. 1, 7 (1945), nor is the public-service aspect of professional practice controlling in determining whether § 1 includes professions. United States v. National Assn, of Real Estate Boards, 339 U. S., at 489. Congress intended to strike as broadly as it could in § 1 of the Sherman Act, and to read into it so wide an exemption as that urged on us would be at odds with that purpose.
The language of § 1 of the Sherman Act, of course, contains no exception. “Language more comprehensive is difficult to conceive.” United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 553 (1944). And our cases have repeatedly established that there is a heavy presumption against implicit exemptions, United States v. Philadelphia National Bank, 374 U. S. 321, 350-351 (1963); California v. FPC, 369 U. S. 482, 485 (1962). Indeed, our cases have specifically included the sale of services within § 1. E. g., American Medical Assn. v. United States, 317 U. S. 519 (1943); Radovich v. National Football League, 352 U. S. 445 (1957). Whatever else it may be, the examination of a land title is a service; the exchange of such a service for money is “commerce” in the most common usage of that word. It is no disparagement of the practice of law as a profession to acknowledge that it has this business aspect, and § 1 of the Sherman Act
“[o]n its face . . . shows a carefully studied attempt to bring within the Act every person engaged in business whose activities might restrain or monopolize commercial intercourse among the states.” United States v. South-Eastern Underwriters Assn., supra, at 553.
In the modern world it cannot be denied that the activities of lawyers play an important part in commercial intercourse, and that anticompetitive activities by lawyers may exert a restraint on commerce.
D
In Parker v. Brown, 317 U. S. 341 (1943), the Court held that an anticompetitive marketing program which “derived its authority and its efficacy from the legislative command of the state” was not a violation of the Sherman Act because the Act was intended to regulate private practices and not to prohibit a State from imposing a restraint as an act of government. Id., at 350-352; Olsen v. Smith, 195 U. S. 332, 344-345 (1904): Respondent State Bar and respondent County Bar both seek to avail themselves of this so-called state-action exemption.
Through its legislature Virginia has authorized its highest court to regulate the practice of law. That court has adopted ethical codes which deal in part with fees, and far from exercising state power to authorize binding price fixing, explicitly directed lawyers not “to be controlled” by fee schedules. The State Bar, a state agency by law, argues that in issuing fee schedule reports and ethical opinions dealing with fee schedules it was merely implementing the fee provisions of the ethical codes. The County Bar, although it is a voluntary association and not a state agency, claims that the ethical codes and the activities of the State Bar “prompted” it to issue fee schedules and thus its actions, too, are state action for Sherman Act purposes.
The threshold inquiry in determining if an anticompetitive activity is state action of the type the Sherman Act was not meant to proscribe is whether the activity is required by the State acting as sovereign. Parker v. Brown, 317 U. S., at 350-352; Continental Co. v. Union Carbide, 370 U. S. 690, 706-707 (1962). Here we need not inquire further into the state-action question because it cannot fairly be said that the State- of Virginia through its Supreme Court Rules required the anticompetitive activities of either respondent. Respondents have pointed to no Virginia statute requiring their activities; state law simply does not refer to fees, leaving regulation of the profession to the Virginia Supreme Court; although the Supreme Court’s ethical codes mention advisory fee schedules they do not direct either respondent to supply them, or require the type of price floor which arose from respondents’ activities. Although the State Bar apparently has been granted the power to issue ethical opinions, there is no indication in this record that the Virginia Supreme Court approves the opinions. Respondents’ arguments, at most, constitute the contention that their activities complemented the objective of the ethical codes. In our view that is not state action for Sherman Act purposes. It is not enough that, as the County Bar puts it, anticompetitive conduct is “prompted” by state action; rather, anti-competitive activities must be compelled by direction of the State acting as a sovereign.
The fact that the State Bar is a state agency for some limited purposes does not create an antitrust shield that allows it to foster anticompetitive practices for the benefit of its members. Cf. Gibson v. Berryhill, 411 U. S. 564, 578-579 (1973). The State Bar, by providing that deviation from County Bar minimum fees may lead to disciplinary action, has voluntarily joined in what is essentially a private anticompetitive activity, and in that posture cannot claim it is beyond the reach of the Sherman Act. Parker v. Brown, supra, at 351-352. Its activities resulted in a rigid price floor from which petitioners, as consumers, could not escape if they wished to borrow money to buy a home.
Ill
We recognize that the States have a compelling interest in the practice of professions within their boundaries, and that as part of their power to protect the public health, safety, and other valid interests they have broad power to establish standards for licensing practitioners and regulating the practice of professions. We also recognize that in some instances the State may decide that “forms of competition usual in the business world may be demoralizing to the ethical standards of a profession.” United States v. Oregon State Medical Society, 343 U. S. 326, 336 (1952). See also Semler v. Oregon State Board of Dental Examiners, 294 U. S. 608, 611-613 (1935). The interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been “officers of the courts.” See Sperry v. Florida ex rel. Florida Bar, 373 U. S. 379, 383 (1963); Cohen v. Hurley, 366 U. S. 117, 123-124 (1961); Law Students Research Council v. Wadmond, 401 U. S. 154, 157 (1971). In holding that certain anticompetitive conduct by lawyers is within the reach of the Sherman Act we intend no diminution of the authority of the State to regulate its professions.
The judgment of the Court of Appeals is reversed and the case is remanded to that court with orders to remand to the District Court for further proceedings consistent with this opinion.
Reversed and remanded.
Mr. Justice Powell took no part in the consideration or decision of this case.
Unauthorized Practice of Law, Opinion No. 17, Aug. 5, 1942, Virginia State Bar — Opinions 239 (1965).
Virginia Code Ann. § 54-49 (1972) provides:
“The Supreme Court of Appeals may, from time to time, prescribe, adopt, promulgate and amend rules and regulations organizing and governing the association known as the Virginia State Bar, composed of the attorneys at law of this State, to act as an administrative agency of the Court for the purpose of investigating and reporting the violation of such rules and regulations as are adopted by the Court under this article to a court of competent jurisdiction for such proceedings as may be necessary, and requiring all persons practicing law in this State to be members thereof in good standing.”
Ibid.
In 1962 the State Bar published a minimum-fee-schedule report that listed a series of fees and stated that they “represent the considered judgment of the Committee [on Economics of Law Practice] as to [a] fair minimum fee in each instance.” The report stated, however, that the fees were not mandatory, and it recommended only that the State Bar consider adopting such a schedule. Nevertheless, shortly thereafter the County Bar adopted its own minimum-fee schedule that purported to be “a conscientious effort to show lawyers in their true perspective of dignity, training and integrity.” The suggested fees for title examination were virtually identical to those in the State Bar report. In accord with Opinion 98 of the State Bar Committee on Legal Ethics the schedule stated that, although there is an ethical duty to charge a lower fee in a deserving case, if a lawyer
“ ‘purely for his own advancement, intentionally and regularly bills less than the customary charges of the bar for similar services . . . [in order to] increase his business with resulting personal gain, it becomes a form of solicitation contrary to Canon 27 and also a violation of Canon 7, which forbids the efforts of one lawyer to encroach upon the employment of another.’ ” App. 30.
In 1969 the State Bar published a second fee-schedule report that, as it candidly stated, “reflect[ed] a general scaling up of fees for legal services.” The report again stated that no local bar association was bound by its recommendations; however, respondent County Bar again quickly moved to publish an updated minimum-fee schedule, and generally to raise fees. The new schedule stated that the fees were not mandatory, but tempered that by referring again to Opinion 98. This time the schedule also stated that lawyers should feel free to charge more than the recommended fees; and to avoid condemnation of higher fees charged by some lawyers, it cautioned County Bar members that “to . . . publicly criticize lawyers who charge more than the suggested fees herein might in itself be evidence of solicitation . . . .”
Virginia State Bar Committee on Legal Ethics, Opinion No. 98, June 1, 1960; Virginia State Bar Committee on Legal Ethics, Opinion No. 170, May 28,1971.
Ibid. The parties stipulated that these opinions are a substantial influencing factor in lawyers’ adherence to the fee schedules. One reason for this may be because the State Bar is required by statute to “investigat [e] and report . . . the violation of . . . rules and regulations as are adopted by the [Virginia Supreme Court] to a court of competent jurisdiction for such proceedings as may be necessary . . . .” Va. Code Ann. §54-49 (1972). Therefore any lawyer who contemplated ignoring the fee schedule must have been aware that professional sanctions were possible, and that an enforcement mechanism existed to administer them.
Two additional county bar associations were originally named as defendants but they agreed to a consent judgment under which they were directed to cancel their existing fee schedules, and were enjoined from adopting, publishing, or distributing any future schedules of minimum or suggested fees. Damage claims against these associations were then dismissed with prejudice.
The court was satisfied that interstate commerce was sufficiently affected to sustain jurisdiction under the Sherman Act because a significant portion of the funds and insurance involved in the purchase of homes in Fairfax County comes from outside the State of Virginia. 355 F. Supp 491, 497 (ED Va. 1973).
The Court of Appeals accurately depicted the situation:
“[I]t is clear from the record that ah or nearly all of the [County Bar] members charged fees equal to or exceeding the fees set forth in the schedule for title examinations and other services involving real estate.” 497 F. 2d 1,12 (CA4 1974).
“ ‘A significant reason for the inability of [petitioners] to obtain legal services ... for less than the fee set forth in the Minimum Fee Schedule . . . was the operation of the minimum fee schedule system.’ ” Id., at 4.
“It is abundantly clear from the record before us that the fee schedule and the enforcement mechanism supporting it act as a substantial restraint upon competition among attorneys practicing in Fairfax County.” Id., at 13.
The Court of Appeals did not disturb the District Court’s findings of fact. It simply disagreed on the conclusions of law drawn therefrom.
It is in a practical sense that we must view an effect on interstate commerce, Swift & Co. v. United States, 196 U. S. 376, 398 (1905); Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 233 (1948).
355 F. Supp., at 494.
The County Bar relies on United States v. Yellow Cab Co., 332 U. S. 218 (1947), to support its argument that the “essentially local” legal services at issue here are beyond the Sherman Act. There we held, inter alia, that intrastate taxi trips that occurred at the start and finish of interstate rail travel were “too unrelated to interstate commerce to constitute a part thereof within the mean-' ing of the Sherman Act.” Id., at 230. The ride to the railway station, we said, “[f]rom the standpoints of time and continuity . . . may be quite distinct and separate from the interstate journey.” Id., at 232. Here, on the contrary, the legal services are coincidental with interstate real estate transactions in terms of time, and, more important, in terms of continuity they are essential. Indeed, it would be more apt to compare the legal services here with a taxi trip between stations to change trains in the midst of an interstate journey. In Yellow Cab we held that such a trip was a part of the stream of commerce. Id., at 228-229.
355 F. Supp., at 497.
The County Bar cites phrases in several cases that implied the practice of a learned profession is not “trade or commerce” under the antitrust laws. E. g., Federal Club v. National League, 259 U. S. 200, 209 (1922) (“a firm of lawyers sending out a member to argue a case . . . does not engage in . . . commerce because the lawyer . . . goes to another State”); FTC v. Raladam Co., 283 U. S. 643, 653 (1931) (“medical practitioners . . . follow a profession and not a trade . . .”); Atlantic Cleaners & Dyers v. United States, 286 U. S. 427, 436 (1932); United States v. National Assn. of Real Estate Boards, 339 U. S. 485, 490 (1950). These citations are to passing references in cases concerned with other issues; and, more important, until the present case it is clear that we have not attempted to decide whether the practice of a learned profession falls within § 1 of the Sherman Act. In National Assn. of Real Estate Boards, we specifically stated that the question was still open, 339 U. S., at 492, as we had done earlier in American Medical Assn. v. United States, 317 U. S. 519, 528 (1943).
The reason for adopting the fee schedule does not appear to have been wholly altruistic. The first sentence in Tospondent State Bar’s 1962 Minimum Fee Schedule Report states:
“ ‘The lawyers have slowly, but surely, been committing economic suicide as a profession.’ ” Virginia State Bar, Minimum Fee Schedule Report 1962, p. 3, App. 20.
The fact that a restraint operates upon a profession as distinguished from a business is, of course, relevant in determining whether that particular restraint violates the Sherman Act. It would be unrealistic to view the practice of professions as interchangeable with other business activities, and automatically to apply to the professions antitrust concepts which originated in other areas. The public service aspect, and other features of the professions, may require that a particular practice, which could properly be viewed as a violation of the Sherman Act in another context, be treated differently. We intimate no view on any other situation than the one with which we are confronted today.
Virginia Code Ann. § 54-48 (1972) provides:
“Rules and regulations defining practice of law and prescribing codes of ethics and disciplinary procedure. — The Supreme Court of Appeals may, from time to time, prescribe, adopt, promulgate and amend rules and regulations:
“(a) Defining the practice of law.
“(b) Prescribing a code of ethics governing the professional conduct of attorneys at law and a code of judicial ethics.
“(c) Prescribing procedure for disciplining, suspending, and disbarring attorneys at law.”
In addition, the Supreme Court of Virginia, has inherent power to regulate the practice of law in that State. Button v. Day, 204 Va. 547, 132 S. E. 2d 292 (1963). See Lathrop v. Donohue, 367 U. S. 820 (1961).
In 1938 the Supreme Court of Virginia adopted Rules for the Integration of the Virginia State Bar, and Rule II, § 12, dealt with the procedure for setting fees. Among six factors that court directed to be considered in setting a fee were “the customary charges of the Bar for similar services.” The court also directed that
"[i]n determining the customary charges of the Bar for similar services, it is proper for a law}-er to consider a schedule of minimum fees adopted by a Bar Association, but no lawyer should permit himself to be controlled thereby or to follow it as his sole guide in determining the amount of his fee.” Rules for Integration of the Virginia State Bar, 171 Va. xvii, xxiii. (Emphasis supplied.)
In 1970 the Virginia Supreme Court amended the 1938 rules in part, and adopted the Code of Professional Responsibility, effective January 1, 1971. 211 Va. 295 (1970). Certain of its provisions also dealt with the fee-setting procedure. In EC 2-18 lawyers were told again that fees vary according to many factors, but that “[s]uggested fee schedules and economic reports of state and local bar associations provide some guidance on the subject of reasonable fees.” 211 Va., at 302. In DR 2-106 (B), which detailed eight factors that should be considered in avoiding an excessive fee, one of the factors was “[t]he fee customarily charged in the locality for similar legal services.” DR 2-106 (B)(3). 211 Va., at 313.
See supra, at 776 n. 2.
The District Court stated that the State Bar acted in only a “minor role” as far as the price fixing was concerned, 355 F. Supp., at 496, and one member of the Court of Appeals panel was prepared to exonerate the State Bar because its participation was so minimal as to be insufficient to impose Sherman Act liability. 497 F. 2d, at 21 (Craven, J., concurring and dissenting). Of course, an alleged participant in a restraint of trade may have so insubstantial a connection with the restraint that liability under the Sherman Act would not be found, see United States v. National Assn. of Real Estate Boards, 339 U. S., at 495; however, that is not the case here. The State Bar’s fee schedule reports provided the impetus for the County Bar, on two occasions, to adopt minimum-fee schedules. More important, the State Bar’s ethical opinions provided substantial reason for lawyers to comply with the minimum-fee schedules. Those opinions threatened professional discipline for habitual disregard of fee schedules, and thus attorneys knew their livelihood was in jeopardy if they did so. Even without that threat the opinions would have constituted substantial reason to adhere to the schedules because attorneys could be expected to comply in order to assure that they did not discredit themselves by departing from professional norms, and perhaps betraying their professional oaths.
The State Bar also contends that it is protected by the Eleventh Amendment. See Edelman v. Jordan, 415 U. S. 651 (1974). Petitioners dispute this contention, and the District Court had no occasion to reach it in view of its holding. Given the record before us we intimate no view on the issue, leaving it for the District Court on remand.
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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sc_jurisdiction
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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 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.
OKLAHOMA TAX COMMISSION v. CITIZEN BAND POTAWATOMI INDIAN TRIBE OF OKLAHOMA
No. 89-1322.
Argued January 7, 1991
Decided February 26, 1991
Rehnquist, C. J., delivered the opinion for a unanimous Court. Stevens, J., filed a concurring opinion, post, p. 514.
David Allen Miley argued the cause for petitioner. With him on the briefs was Joe Mark Elkouri.
Edwin S. Kneedler argued the cause for the United States as amicus curiae. With him on the brief were Solicitor General Starr, Assistant Attorney General Stewart, Deputy Solicitor General Wallace, and Robert L. Klarquist.
Michael Minnis argued the cause for respondent. With him on the brief was G. Lindsay Simmons
Briefs of amici curiae urging affirmance were filed for the Cheyenne-Arapaho Tribes of Oklahoma et al. by Melody L. McCoy, Yvonne Teresa Knight, Kim Jerome Gottschalk, Reid P. Chambers, Jeanne S. Whiteing, Robert S. Thompson III, Thomas W. Fredericks, Bertram E. Hirsch, and Jack F. Trope; for the Inter-Tribal Council of the Five Civilized Tribes by Bob Rabón; for the Iroquois Businesspersons Association by Joseph E. Zdarsky; for the Sac and Fox Nation et al. by G. William Rice and Gregory H. Bigler; and for the Seneca-Cayuga Tribe of Oklahoma et al. by Glenn M. Feldman.
Chief Justice Rehnquist
delivered the opinion of the Court.
The issue presented in this case is whether a State that has not asserted jurisdiction over Indian lands under Public Law 280 may validly tax sales of goods to tribesmen and nonmembers occurring on land held in trust for a federally recognized Indian tribe. We conclude that under the doctrine of tribal sovereign immunity, the State may not tax such sales to Indians, but remains free to collect taxes on sales to nonmembers of the tribe.
Respondent, the Citizen Band Potawatomi Indian Tribe of Oklahoma (Potawatomis or Tribe), owns and operates a convenience store in Oklahoma on land held in trust for it by the Federal Government. For many years, the Potawatomis have sold cigarettes at the convenience store without collecting Oklahoma’s state cigarette tax on these sales. In 1987, petitioner, the Oklahoma Tax Commission (Oklahoma or Commission), served the Potawatomis with an assessment letter, demanding that they pay $2.7 million for taxes on cigarette sales occurring between 1982 and 1986. The Potawato-mis filed suit to enjoin the assessment in the United States District Court for the Western District of Oklahoma.
Oklahoma counterclaimed, asking the District Court to enforce its $2.7 million claim against the Tribe and to enjoin the Potawatomis from selling cigarettes in the future without collecting and remitting state taxes on those sales. The Pota-watomis moved to dismiss the counterclaim on the ground that the Tribe had not waived its sovereign immunity and therefore could not be sued by the State. The District Court denied the Potawatomis’ motion to dismiss and proceeded to trial. On the merits, the District Court concluded that the Commission lacked the authority to tax the on-reservation cigarette sales to tribal members or to tax the Tribe directly. It held, therefore, that the Tribe was immune from Oklahoma’s suit to collect past unpaid taxes directly from the Tribe. Nonetheless, the District Court held that Oklahoma could require the Tribe to collect taxes prospectively for on-reservation sales to nonmembers of the Tribe. Accordingly, the court ordered the Tribe to collect taxes on sales to non-tribal members, and to comply with all statutory recordkeep-ing requirements.
The Tribe appealed the District Court’s denial of its motion to dismiss and the court’s order requiring it to collect and remit taxes on sales to nonmembers. The United States Court of Appeals for the Tenth Circuit reversed. 888 F. 2d 1303 (1989). That court held that the District Court erred in entertaining Oklahoma’s counterclaims because the Potawa-tomis enjoy absolute sovereign immunity from suit, and had not waived that immunity by filing an action for injunctive relief. The Court of Appeals further held that Oklahoma lacked the authority to impose a tax on any sales that occur on the reservation, regardless of whether they are to tribesmen or nonmembers. It concluded that “because the convenience store is located on land over which the Potawatomis retain sovereign powers, Oklahoma has no authority to tax the store’s transactions unless Oklahoma has received an independent jurisdictional grant of authority from Congress.” Id., at 1306. Finding no independent jurisdictional grant of authority to tax the Potawatomis, the Court of Appeals ordered the District Court to grant the Potawatomis’ request for an injunction.
We granted certiorari to resolve an apparent conflict with this Court’s precedents and to clarify the law of sovereign immunity with respect to the collection of sales taxes on Indian lands. 498 U. S. 806 (1990). We now affirm in part and reverse in part.
I
Indian tribes are “domestic dependent nations” that exercise inherent sovereign authority over their members and territories. Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831). Suits against Indian tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation. Santa Clara Pueblo v. Martinez, 436 U. S. 49, 58 (1978). Petitioner acknowledges that Indian tribes generally enjoy sovereign immunity, but argues that the Potawato-mis waived their sovereign immunity by seeking an injunction against the Commission’s proposed tax assessment. It argues that, to the extent that the Commission’s counterclaims were “compulsory” under Federal Rule of Civil Procedure 13(a), the District Court did not need any independent jurisdictional basis to hear those claims.
We rejected an identical contention over a half-century ago in United States v. United States Fidelity & Guaranty Co., 309 U. S. 506, 511-512 (1940). In that case, a surety bondholder claimed that a federal court had jurisdiction to hear its state-law counterclaim against an Indian Tribe because the Tribe’s initial action to enforce the bond constituted a waiver of sovereign immunity. We held that a tribe does not waive its sovereign immunity from actions that could not otherwise be brought against it merely because those actions were pleaded in a counterclaim to an action filed by the tribe. Id., at 513. “Possessing . . . immunity from direct suit, we are of the opinion [the Indian nations] possess a similar immunity from cross-suits.” Ibid. Oklahoma does not argue that it received congressional authorization to adjudicate a counterclaim against the Tribe, and the case is therefore controlled by Fidelity & Guaranty. We uphold the Court of Appeals’ determination that the Tribe did not waive its sovereign immunity merely by filing an action for injunctive relief.
Oklahoma offers an alternative, and more far-reaching, basis for reversing the Court of Appeals’ dismissal of its counterclaims. It urges this Court to construe more narrowly, or abandon entirely, the doctrine of tribal sovereign immunity. Oklahoma contends that the tribal sovereign immunity doctrine impermissibly burdens the administration of state tax laws. At the very least, Oklahoma proposes that the Court modify Fidelity & Guaranty, because tribal business activities such as cigarette sales are now so detached from traditional tribal interests that the tribal-sovereignty doctrine no longer makes sense in this context. The sovereignty doctrine, it maintains, should be limited to the tribal courts and the internal affairs of tribal government, because no purpose is served by insulating tribal business ventures from the authority of the States to administer their laws.
A doctrine of Indian tribal sovereign immunity was originally enunciated by this Court and has been reaffirmed in a number of cases. Turner v. United States, 248 U. S. 354, 358 (1919); Santa Clara Pueblo v. Martinez, supra, at 58. Congress has always been at liberty to dispense with such tribal immunity or to limit it. Although Congress has occasionally authorized limited classes of suits against Indian tribes, it has never authorized suits to enforce tax assessments. Instead, Congress has consistently reiterated its approval of the immunity doctrine. See, e. g., Indian Financing Act of 1974, 88 Stat. 77, 25 U. S. C. § 1451 et seq., and the Indian Self-Determination and Education Assistance Act, 88 Stat. 2203, 25 U. S. C. § 450 et seq. These Acts reflect Congress’ desire to promote the “goal of Indian self-government, including its ‘overriding goal’ of encouraging tribal self-sufficiency and economic development.” California v. Cabazon Band of Mission Indians, 480 U. S. 202, 216 (1987). Under these circumstances, we are not disposed to modify the long-established principle of tribal sovereign immunity.
Finally, Oklahoma asserts that even if sovereign immunity applies to direct actions against tribes arising from activities on the reservation, that immunity should not apply to the facts of this case. The State contends that the Potawatomis’ cigarette sales do not, in fact, occur on a “reservation.” Relying upon our decision in Mescalero Apache Tribe v. Jones, 411 U. S. 145 (1973), Oklahoma argues that the tribal convenience store should be held subject to state tax laws because it does not operate on a formally designated “reservation,” but on land held in trust for the Potawatomis. Neither Mesca-lero nor any other precedent of this Court has ever drawn the distinction between tribal trust land and reservations that Oklahoma urges. In United States v. John, 437 U. S. 634 (1978), we stated that the test for determining whether land is Indian country does not turn upon whether that land is denominated “trust land” or “reservation.” Rather, we ask whether the area has been “‘validly set apart for the use of the Indians as such, under the superintendence of the Government.’” Id., at 648-649; see also United States v. McGowan, 302 U. S. 535, 539 (1938).
Mescalero is not to the contrary; that case involved a ski resort outside of the reservation boundaries operated by the Tribe under a 30-year lease from the Forest Service. We said that “[ajbsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State.” 411 U. S., at 148-149. Here, by contrast, the property in question is held by the Federal Government in trust for the benefit of the Potawa-tomis. As in John, we find that this trust land is “validly set apart” and thus qualifies as a reservation for tribal immunity purposes. 437 U. S., at 649.
II
Oklahoma attacks the conclusion of the Court of Appeals that the sovereign immunity of the Tribe prevents it from being liable for the collection of state taxes on the sale of cigarettes to nonmembers of the Tribe. The Tribe, in turn, argues that this issue is not properly before us. It observes that the only issue presented in its prayer for an injunction was whether Oklahoma could require it to pay the challenged assessment for previously uncollected taxes. The complaint did not challenge Oklahoma’s authority to require the Tribe to collect the sales tax prospectively, and thus, the Tribe argues, that question was never put in issue.
We do not agree. The Tribe’s complaint alleged that Oklahoma lacked authority to impose a sales tax directly upon the Tribe. The District Court held that the Tribe could be required to collect the tax on sales to nonmembers. The Court of Appeals reversed the decision of the District Court on this point. While neither of these courts need have reached that question, they both did. The question is fairly subsumed in the “questions presented” in the petition for certiorari, and both parties have briefed it. We have the authority to decide it and proceed to do so. See Vance v. Terrazas, 444 U. S. 252, 258-259, n. 5 (1980).
Although the doctrine of tribal sovereign immunity applies to the Potawatomis, that doctrine does not excuse a tribe from all obligations to assist in the collection of validly imposed state sales taxes. Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134 (1980). Oklahoma argues that the Potawatomis’ tribal immunity notwithstanding, it has the authority to tax sales of cigarettes to nonmembers of the Tribe at the Tribe’s convenience store. We agree. In Moe v. Confederated Salish and Kootenai Tribes, 425 U. S. 463 (1976), this Court held that Indian retailers on an Indian reservation may be required to collect all state taxes applicable to sales to non-Indians. We determined that requiring the tribal seller to collect these taxes was a minimal burden justified by the State’s interest in assuring the payment of these concededly lawful taxes. Id., at 483. “Without the simple expedient of having the retailer collect the sales tax from non-Indian purchasers, it is clear that wholesale violations of the law by the latter class will go virtually unchecked.” Id., at 482. Only four years later we reiterated this view, ruling that tribal sellers are obliged to collect and remit state taxes on sales to nonmembers at Indian smoke-shops on reservation lands. Colville, supra.
The Court of Appeals thought this case was distinguishable from Moe and Colville. It observed the State of Washington had asserted jurisdiction over civil causes of action in Indian country as permitted by Public Law 280. Pub. L. 280, 67 Stat. 588, 28 U. S. C. § 1360. The court contrasted Colville to this case, in which Oklahoma disclaimed jurisdiction over Indian lands upon entering the Union and did not reassert jurisdiction over these lands pursuant to Public Law 280. The Court of Appeals concluded that because Oklahoma did not elect to assert jurisdiction under Public Law 280, the Pota-watomis were immune from any requirement of Oklahoma state tax law.
Neither Moe nor Colville depended upon the State’s assertion of jurisdiction under Public Law 280. Those cases stand for the proposition that the doctrine of tribal sovereign immunity does not prevent a State from requiring Indian retailers doing business on tribal reservations to collect a state-imposed cigarette tax on their sales to nonmembers of the Tribe. Colville’s only reference to Public Law 280 relates to a concession that the statute did not furnish a basis for taxing sales to tribe members. 447 U. S., at 142, n. 8. Public Law 280 merely permits a State to assume jurisdiction over “civil causes of action” in Indian country. We have never held that Public Law 280 is independently sufficient to confer authority on a State to extend the full range of its regulatory authority, including taxation, over Indians and Indian reservations. Bryan v. Itasca County, 426 U. S. 373 (1976); see also Rice v. Rehner, 463 U. S. 713, 734, n. 18 (1983); Cabazon, 480 U. S., at 208-210, and n. 8. Thus, it is simply incorrect to conclude that Public Law 280 was the essential (yet unspoken) basis for this Court’s decision in Colville.
In view of our conclusion with respect to sovereign immunity of the Tribe from suit by the State, Oklahoma complains that, in effect, decisions such as Moe and Colville give them a right without any remedy. There is no doubt that sovereign immunity bars the State from pursuing the most efficient remedy, but we are not persuaded that it lacks any adequate alternatives. We have never held that individual agents or officers of a tribe are not liable for damages in actions brought by the State. See Ex parte Young, 209 U. S. 123 (1908). And under today’s decision, States may of course collect the sales tax from cigarette wholesalers, either by seizing unstamped cigarettes off the reservation, Colville, supra, at 161-162, or by assessing wholesalers who supplied unstamped cigarettes to the tribal stores, City Vending of Muskogee, Inc. v. Oklahoma Tax Comm’n, 898 F. 2d 122 (CA10 1990). States may also enter into agreements with the tribes to adopt a mutually satisfactory regime for the collection of this sort of tax. See 48 Stat. 987, as amended, 25 U. S. C. § 476. And if Oklahoma and other States similarly situated find that none of these alternatives produce the revenues to which they are entitled, they may of course seek appropriate legislation from Congress.
The judgment of the Court of Appeals is accordingly
Affirmed in part and reversed in part.
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:
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sc_partywinning
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether 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.
ELI LILLY & CO. v. MEDTRONIC, INC.
No. 89-243.
Argued February 26, 1990
Decided June 18, 1990
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, Marshall, Blackmun, and Stevens, JJ., joined. Kennedy, J., filed a dissenting opinion, in which White, J., joined, post, p. 679. O’Connor, J., took no part in the consideration or decision of the case.
Timothy J. Malloy argued the cause for petitioner. With him on the briefs were Gregory J. Vogler, Lawrence M. Jarvis, and Edward P. Gray.
Arthur R. Miller argued the cause for respondent. With him on the brief were Ronald E. Lund, John F. Lynch, and W. Bryan Farney.
Briefs of amici curiae urging reversal were filed for the Industrial Biotechnology Association by Stephan E. Lawton; for Intellectual Property Owners, Inc., by Donald W. Banner and Herbert C. Wamsley; for Neuromedical Technologies, Inc., by John R. Feather; for Procter & Gamble Co. by Ronald L. Hemingway and Richard C. Witte; and for Zimmer, Inc., by Donald O. Beers, Barbara J. Delaney, Timothy Wendt, and Paul David Schoenle.
Briefs of amici curiae urging affirmance were filed for the Commonwealth of Pennsylvania et al. by the Attorneys General for their respective States as follows: Ernest D. Preate, Jr., of Pennsylvania, Mary Sue Terry of Virginia, Don Siegelman of Alabama, John Steven Clark of Arkansas, Charles M. Oberly III of Delaware, Warren Price III of Hawaii, Neil F. Hartigan of Illinois, William J. Guste, Jr., of Louisiana, Frank J. Kelley of Michigan, Brian McKay of Nevada, Lacy H. Thornburg of North Carolina, James E. O’Neil of Rhode Island, T. Travis Medlock of South Carolina, Roger A. Tellinghuisen of South Dakota, R. Paul Van Dam of Utah, Jeffrey L. Amestoy of Vermont, Kenneth O. Eikenberry of Washington, Roger W. Tompkins II of West Virginia, and Hubert H. Humphrey III of Minnesota; for the American Association of Retired Persons by Jamie S. Gorelick and Jonathan B. Sallet; for Carbon Implants Inc. by Michael M. Phillips; for Cook Group Inc. by Charles R. Reeves; for Intermedies, Inc., by John R. Merkling; for Teletronics, Inc., by Michael I. Rackman and William C. Nealon; for the University of Minnesota et al. by William P. Donahue; for Ventritex, Inc., by George H. Gerstman; and for Dr. Gust H. Bardy by David L. Garrison.
Briefs of amici curiae were filed for Paralyzed Veterans of America by Charles L. Gholz, Jeffrey H. Kaufman, and Robert L. Nelson; for Pfizer Hospital Products Group, Inc., by Rudolf E. Hutz; and for Dr. Denton Cooley by Margaret E. Anderson.
Justice Scalia
delivered the opinion of the Court.
This case presents the question whether 35 U. S. C. § 271(e)(1) (1982 ed., Supp II) renders activities that would otherwise constitute patent infringement noninfringing if they are undertaken for the purpose of developing and submitting to the Food and Drug Administration (FDA) information necessary to obtain marketing approval for a medical device under § 515 of the Federal Food, Drug, and Cosmetic Act (FDCA), 90 Stat. 552, 21 U. S. C. § 360e.
I
In 1983, pursuant to 28 U. S. C. § 1338(a), the predecessor-in-interest of petitioner Eli Lilly & Co. filed an action against respondent Medtronic, Inc., in the United States District Court for the Eastern District of Pennsylvania to enjoin respondent’s testing and marketing of an implantable cardiac defibrillator, a medical device used in the treatment of heart patients. Petitioner claimed that respondent’s actions infringed its exclusive rights under United States Patent No. Re 27,757 and United States Patent No. 3,942,536. Respondent sought to defend against the suit on the ground that its activities were “reasonably related to the development and submission of information under” the FDCA, and thus exempt from a finding of infringement under 35 U. S. C. § 271(e)(1) (1982 ed., Supp. II). The District Court rejected this argument, concluding that the exemption does not apply to the development and submission of information relating to medical devices. Following a jury trial, the jury returned a verdict for petitioner on infringement of the first patent, and the court directed a verdict for petitioner on infringement of the second patent. The court entered judgment for petitioner and issued a permanent injunction against infringement of both patents.
On appeal, the Court of Appeals for the Federal Circuit reversed, holding that by virtue of § 271(e)(1) respondent’s activities could not constitute infringement if they had been undertaken to develop information reasonably related to the development and submission of information necessary to obtain regulatory approval under the FDCA. It remanded for the District Court to determine whether in fact that condition had been met. 872 F. 2d 402 (1989). We granted certiorari. 493 U. S. 889 (1989).
II
In 1984, Congress enacted the Drug Price Competition and Patent Term Restoration Act of 1984 (1984 Act), 98 Stat. 1585, which amended the FDCA and the patent laws in several important respects. The issue in this case concerns the proper interpretation of a portion of § 202 of the 1984 Act, codified at 35 U. S. C. § 271(e)(1). That paragraph, as originally enacted, provided:
“It shall not be an act of infringement to make, use, or sell a patented invention (other than a new animal drug or veterinary biological product (as those terms are used in the Federal Food, Drug, and Cosmetic Act and the Act of March 4, 1913)) solely for uses reasonably related to the development and submission of information under a Federal law which regulates the manufacture, use, or sale of drugs.” 35 U. S. C. § 271(e)(1) (1982 ed., Supp. II).
The parties dispute whether this provision exempts from infringement the use of patented inventions to develop and submit information for marketing approval of medical devices under the FDCA.
A
The phrase “patented invention” in § 271(e)(1) is defined to include all inventions, not drug-related inventions alone. See 35 U. S. C. § 100(a) (“When used in this title unless the context otherwise indicates . . . [t]he term ‘invention’ means invention or discovery”). The core of the present controversy is that petitioner interprets the statutory phrase, “a Federal law which regulates the manufacture, use, or sale of drugs,” to refer only to those individual provisions of federal law that regulate drugs, whereas respondent interprets it to refer to the entirety of any Act (including, of course, the FDCA) at least some of whose provisions regulate drugs. If petitioner is correct, only such provisions of the FDCA as § 505, 52 Stat. 1052, as amended, 21 U. S. C. § 355, governing premarket approval of new drugs, are covered by § 271 (e)(1), and respondent’s submission of information under 21 U. S. C. § 360e, governing premarket approval of medical devices, would not be a noninfringing use.
On the basis of the words alone, respondent’s interpretation seems preferable. The phrase “a Federal law” can be used to refer to an isolated statutory section—one might say, for example, that the judicial review provision of the Administrative Procedure Act, 5 U. S. C. § 706, is “a Federal law.” The phrase is also used, however, to refer to an entire Act. The Constitution, for example, provides that “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States.” U. S. Const., Art. I, § 7, cl. 2 (emphasis added). And the United States Code provides that “[w]henever a bill. . . becomes a law or takes effect, it shall forthwith be received by the Archivist of the United States from the President.” 1 U. S. C. § 106a (emphasis added). This latter usage, which is probably the more common one, seems also the more natural in the present context. If § 271(e)(1) referred to “a Federal law which pertains to the manufacture, use, or sale of drugs” it might be more reasonable to think that an individual provision was referred to. But the phrase “a Federal law which regulates the manufacture, use, or sale of drugs” more naturally summons up the image of an entire statutory scheme of regulation. The portion of § 271(e)(1) that immediately precedes the words “a Federal law” likewise seems more compatible with reference to an entire Act. It refers to “the development and submission of information under a Federal law” (emphasis added). It would be more common, if a single section rather than an entire scheme were referred to, to speak of “the development and submission of information pursuant to a Federal law,” or perhaps “in compliance with a Federal law.” Taking the action “under a Federal law” suggests taking it in furtherance of or compliance with a comprehensive scheme of regulation. Finally, and perhaps most persuasively, the fact that § 202 of the 1984 Act (which established § 271(e)(1)) used the word “law” in its broader sense is strongly suggested by the fact that the immediately preceding—and, as we shall see, closely related—section of the 1984 Act, when it meant to refer to a particular provision of law rather than an entire Act, referred to “the first permitted commercial marketing or use of the product under the provision of law.” § 201, 98 Stat. 1598, 35 U. S. C. § 156(a)(5)(A) (emphasis added).
The centrally important distinction in this legislation (from the standpoint of the commercial interests affected) is not between applications for drug approval and applications for device approval, but between patents relating to drugs and patents relating to devices. If only the former patents were meant to be included, there were available such infinitely more clear and simple ways of expressing that intent that it is hard to believe the convoluted manner petitioner suggests was employed would have been selected. The provision might have read, for example, “It shall not be an act of infringement to make, use, or sell a patented drug invention . . . solely for uses reasonably related to the development and submission of information required, as a condition of manufacture, use, or sale, by Federal law.” Petitioner contends that the terms “patented drug,” or “drug invention” (or, presumably, “patented drug invention”) would have been “potentially unclear” as to whether they covered only patents for drug products, or patents for drug composition and drug use as well. Brief for Petitioner 22. If that had been the concern, however, surely it would have been clearer and more natural to expand the phrase constituting the object of the sentence to “patented invention for drug product, drug composition, or drug use” than to bring in such a limitation indirectly by merely limiting the laws under which the information is submitted to drug regulation laws.
On the other side of the ledger, however, one must admit that while the provision more naturally means what respondent suggests, it is somewhat difficult to understand why anyone would want it to mean that. Why should the touchstone of noninfringement be whether the use is related to the development and submission of information under a provision that happens to be included within an Act that, in any of its provisions, not necessarily the one at issue, regulates drugs? The first response is that this was a shorthand reference to the pertinent provisions Congress was aware of, all of which happened to be included in Acts that regulated drugs. But since it is conceded that all those pertinent provisions were contained within only two Acts (the FDCA and the Public Health Service Act (PHS Act), 58 Stat. 682, as amended, 42 U. S. C. § 201 et seq.), that is not much of a time-saving shorthand. The only rejoinder can be that Congress anticipated future regulatory-submission requirements that it would want to be covered, which might not be included in the FDCA or the PHS Act but would surely (or probably) be included in another law that regulates drugs. That is not terribly convincing. On the other hand, this same awkwardness, in miniature, also inheres in petitioner’s interpretation, unless one gives “under a Federal law” a meaning it simply will not bear. That is to say, if one interprets the phrase to refer to only a single section or even subsection of federal law, it is hard to understand why the fact that that section or subsection happens to regulate drugs should bring within § 271(e)(1) other products that it also regulates; and it does not seem within the range of permissible meaning to interpret “a Federal law” to mean only isolated portions of a single section or subsection. The answer to this, presumably, is that Congress would not expect two products to be dealt with in the same section or subsection—but that also is not terribly convincing.
As far as the text is concerned, therefore, we conclude that we have before us a provision that somewhat more naturally reads as the Court of Appeals determined, but that is not plainly comprehensible on anyone’s view. Both parties seek to enlist legislative history in support of their interpretation, but that sheds no clear light. We think the Court of Appeals’ interpretation is confirmed, however, by the structure of the 1984 Act taken as a whole.
B
Under federal law, a patent “grant[s] to the patentee, his heirs or assigns, for the term of seventeen years, . . . the right to exclude others from making, using, or selling the invention throughout the United States.” 35 U. S. C. § 154. Except as otherwise provided, “whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.” § 271(a). The parties agree that the 1984 Act was designed to respond to two unintended distortions of the 17-year patent term produced by the requirement that certain products must receive premarket regulatory approval. First, the holder of a patent relating to such products would as a practical matter not be able to reap any financial rewards during the early years of the term. When an inventor makes a potentially useful discovery, he ordinarily protects it by applying for a patent at once. Thus, if the discovery relates to a product that cannot be marketed without substantial testing and regulatory approval, the “clock” on his patent term will be running even though he is not yet able to derive any profit from the invention.
The second distortion occurred at the other end of the patent term. In 1984, the Court of Appeals for the Federal Circuit decided that the manufacture, use, or sale of a patented invention during the term of the patent constituted an act of infringement, see § 271(a), even if it was for the sole purpose of conducting tests and developing information necessary to apply for regulatory approval. See Roche Products, Inc. v. Bolar Pharmaceutical Co., 733 F. 2d 858, cert. denied, 469 U. S. 856 (1984). Since that activity could not be commenced by those who planned to compete with the patentee until expiration of the entire patent term, the patentee’s de facto monopoly would continue for an often substantial period until regulatory approval was obtained. In other words, the combined effect of the patent law and the premarket regulatory approval requirement was to create an effective extension of the patent term.
The 1984 Act sought to eliminate this distortion from both ends of the patent period. Section 201 of the Act established a patent-term extension for patents relating to certain products that were subject to lengthy regulatory delays and could not be marketed prior to regulatory approval. The eligible products were described as follows:
“(1) The term ‘product’ means:
“(A) A human drug product.
“(B) Any medical device, food additive, or color additive subject to regulation under the Federal Food, Drug, and Cosmetic Act.
“(2) The term ‘human drug product’ means the active ingredient of a new drug, antibiotic drug, or human biological product (as those terms are used in the Federal Food, Drug, and Cosmetic Act and the Public Health Service Act) including any salt or ester of the active ingredient, as a single entity or in combination with another active ingredient.” 35 U. S. C. § 156(f).
Section 201 provides that patents relating to these products can be extended up to five years if, inter alia, the product was “subject to a regulatory review period before its commercial marketing or use,” and “the permission for the commercial marketing or use of the product after such regulatory review period [was] the first permitted commercial marketing or use of the product under the provision of law under which such regulatory review period occurred.” 35 U. S. C. § 156(a).
The distortion at the other end of the patent period was addressed by § 202 of the Act. That added to the provision prohibiting patent infringement, 35 U. S. C. § 271, the paragraph at issue here, establishing that “[i]t shall not be an act of infringement to make, use, or sell a patented invention . . . solely for uses reasonably related to the development and submission of information under a Federal law which regulates the manufacture, use, or sale of drugs.” § 271(e)(1). This allows competitors, prior to the expiration of a patent, to engage in otherwise infringing activities necessary to obtain regulatory approval.
Under respondent’s interpretation, there may be some relatively rare situations in which a patentee will obtain the advantage of the § 201 extension but not suffer the disadvantage of the § 202 noninfringement provision, and others in which he will suffer the disadvantage without the benefit. Under petitioner’s interpretation, however, that sort of disequilibrium becomes the general rule for patents relating to all products (other than drugs) named in § 201 and subject to premarket approval under the FDCA. Not only medical devices, but also food additives and color additives, since they are specifically named in § 201, see 35 U. S. C. § 156(f), receive the patent-term extension; but since the specific provisions requiring regulatory approval for them, though included in the FDCA, are not provisions requiring regulatory approval for drugs, they are (on petitioner’s view) not subject to the noninfringement provision of § 271(e)(1). It seems most implausible to us that Congress, being demonstrably aware of the dual distorting effects of regulatory approval requirements in this entire area—dual distorting effects that were roughly offsetting, the disadvantage at the beginning of the term producing a more or less corresponding advantage at the end of the term—should choose to address both those distortions only for drug products; and for other products named in § 201 should enact provisions which not only leave in place an anticompetitive restriction at the end of the monopoly term but simultaneously expand the monopoly term itself, thereby not only failing to eliminate but positively aggravating distortion of the 17-year patent protection. It would take strong evidence to persuade us that this is what Congress wrought, and there is no such evidence here.
Apart from the reason of the matter, there are textual indications that §§ 201 and 202 are meant generally to be complementary. That explains, for example, § 202's exception for “a new animal drug or veterinary biological product (as those terms are used in the Federal Food, Drug, and Cosmetic Act and the Act of March 4, 1913).” 35 U. S. C. § 271(e)(1). Although new animal drugs and veterinary biological products are subject to premarket regulatory licensing and approval under the FDCA, see 21 U. S. C. § 360b (new animal drugs), and the Act of March 4, 1913, see 21 U. S. C. §§ 151, 154 (veterinary biological products)—each “a Federal law which regulates the manufacture, use, or sale of drugs”—neither product was included in the patent-term extension provision of § 201. They therefore were excepted from § 202 as well. Interpreting § 271(e)(1) as the Court of Appeals did here appears to create a perfect “product” fit between the two sections. All of the products eligible for a patent term extension under § 201 are subject to § 202, since all of them— medical devices, food additives, color additives, new drugs, antibiotic drugs, and human biological products—are subject to premarket approval under various provisions of the FDCA, see 21 U. S. C. § 360e (medical devices); § 348 (food additives); § 376 (color additives); § 355 (new drugs); § 357 (antibiotic drugs), or under the PHS Act, see 42 U. S. C. § 262 (human biological products). And the products subject to premarket approval under the FDCA and the Act of March 4, 1913, that are not made eligible for a patent term extension under § 201—new animal drugs and veterinary biological products—are excluded from § 202 as well.
III
According to petitioner, “[t]he argument for a broad construction of Section 271(e)(1) is refuted by the companion Sections (e)(2) and (e)(4).” Brief for Petitioner 17. The latter provide:
“(2) It shall be an act of infringement to submit an application under section 505(j) of the Federal Food, Drug, and Cosmetic Act or described in section 505(b)(2) of such Act for a drug claimed in a patent or the use of which is claimed in a patent, if the purpose of such submission is to obtain approval under such Act to engage in the commercial manufacture, use, or sale of a drug claimed in a patent or the use of which is claimed in a patent before the expiration of such patent.
“(4) For an act of infringement described in paragraph (2)-
“(A) the court shall order the effective date of any approval of the drug involved in the infringement to be a date which is not earlier than the date of the expiration of the patent which has been infringed,
“(B) injunctive relief may be granted against an infringer to prevent the commercial manufacture, use, or sale of an approved drug, and
“(C) damages or other monetary relief may be awarded against an infringer only if there has been commercial manufacture, use, or sale of an approved drug.
“The remedies prescribed by subparagraphs (A), (B), and (C) are the only remedies which may be granted by a court for an act of infringement described in paragraph (2), except that a court may award attorney fees under section 285.” 35 U. S. C. §§ 271(e)(2), (4).
Petitioner points out that the protections afforded by these provisions are conferred exclusively on the holders of drug patents. They would, petitioner contends, have been conferred upon the holders of other patents if Congress had intended the infringement exemption of § 271(e)(1) to apply to them as well.
That is not so. The function of the paragraphs in question is to define a new (and somewhat artificial) act of infringement for a very limited and technical purpose that relates only to certain drug applications. As an additional means of eliminating the de facto extension at the end of the patent term in the case of drugs, and to enable new drugs to be marketed more cheaply and quickly, § 101 of the 1984 Act amended § 505 of the FDCA, 21 U. S. C. § 355, to authorize abbreviated new drug applications (ANDA’s), which would substantially shorten the time and effort needed to obtain marketing approval. An ANDA may be filed for a generic drug that is the same as a so-called “pioneer drug” previously approved, see § 355(j)(2)(A), or that differs from the pioneer drug in specified ways, see § 355(j)(2)(C). The ANDA applicant can substitute bioequivalence data for the extensive animal and human studies of safety and effectiveness that must accompany a full new drug application. Compare § 355(j)(2) (A)(iv) with § 355(b)(1). In addition, § 103 of the 1984 Act amended § 505(b) of the FDCA, § 355(b), to permit submission of a so-called paper new drug application (paper NDA), an application that relies on published literature to satisfy the requirement of animal and human studies demonstrating safety and effectiveness. See § 355(b)(2). Like ANDA’s, paper NDA’s permit an applicant seeking approval of a generic drug to avoid the costly and time-consuming studies required for a pioneer drug.
These abbreviated drug-application provisions incorporated an important new mechanism designed to guard against infringement of patents relating to pioneer drugs. Pioneer drug applicants are required to file with the FDA the number and expiration date of any patent which claims the drug that is the subject of the application, or a method of using such drug. See § 355(b)(1). ANDA’s and paper NDA’s are required to contain one of four certifications with respect to each patent named in the pioneer drug application: (1) “that such patent information has not been filed,” (2) “that such patent has expired,” (3) “the date on which such patent will expire,” or (4) “that such patent is invalid or will not be infringed by the manufacture, use, or sale of the new drug for which the application is submitted.” §§ 355(b)(2)(A), 355(j)(2)(A)(vii).
This certification is significant, in that it determines the date on which approval of an ANDA or paper NDA can be made effective, and hence the date on which commercial marketing may commence. If the applicant makes either the first or second certification, approval can be made effective immediately. See §§ 355(c)(3)(A), 355(j)(4)(B)(i). If the applicant makes the third certification, approval of the application can be made effective as of the date the patent expires. See §§ 355(c)(3)(B), 355(j)(4)(B)(ii). If the applicant makes the fourth certification, however, the effective date must depend on the outcome of further events triggered by the Act. An applicant who makes the fourth certification is required to give notice to the holder of the patent alleged to be invalid or not infringed, stating that an application has been filed seeking approval to engage in the commercial manufacture, use, or sale of the drug before the expiration of the patent, and setting forth a detailed statement of the factual and legal basis for the applicant’s opinion that the patent is not valid or will not be infringed. See §§ 355(b)(3)(B), 355(j)(2)(B)(ii). Approval of an ANDA or paper NDA containing the fourth certification may become effective immediately only if the patent owner has not initiated a lawsuit for infringement within 45 days of receiving notice of the certification. If the owner brings such a suit, then approval may not be made effective until the court rules that the patent is not infringed or until the expiration of (in general) 30 months, whichever first occurs. See §§ 355(c)(3)(C), 355(j)(4)(B)(iii).
This scheme will not work, of course, if the holder of the patent pertaining to the pioneer drug is disabled from establishing in court that there has been an act of infringement. And that was precisely the disability that the new 35 U. S. C. § 271(e)(1) imposed with regard to use of his patented invention only for the purpose of obtaining premarketing approval. Thus, an act of infringement had to be created for these ANDA and paper NDA proceedings. That is what is achieved by § 271 (e)(2)—the creation of a highly artificial act of infringement that consists of submitting an ANDA or a paper NDA containing the fourth type of certification that is in error as to whether commercial manufacture, use, or sale of the new drug (none of which, of course, has actually occurred) violates the relevant patent. Not only is the defined act of infringement artificial, so are the specified consequences, as set forth in subsection (e)(4). Monetary damages are permitted only if there has been “commercial manufacture, use, or sale.” § 271(e)(4)(C). Quite obviously, the purpose of subsections (e)(2) and (e)(4) is to enable the judicial adjudication upon which the ANDA and paper NDA schemes depend. It is wholly to be expected, therefore, that these provisions would apply only to applications under the sections establishing those schemes—which (entirely incidentally, for present purposes) happen to be sections that relate only to drugs and not to other products.
* * *
No interpretation we have been able to imagine can transform § 271(e)(1) into an elegant piece of statutory draftsmanship. To construe it as the Court of Appeals decided, one must posit a good deal of legislative imprecision; but to construe it as petitioner would, one must posit that and an implausible substantive intent as well.
The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
Justice O’Connor took no part in the consideration or decision of this case.
Unless otherwise specified, references to sections of the United States Code are to those sections as they existed upon the effective date of the 1984 Act.
Petitioner’s principal argument is that the legislative history of § 202 mentions only drugs—which is quite different, of course, from its saying (as it does not) that only drugs are included. “It is not the law that a statute can have no effects which are not explicitly mentioned in its legislative history . . . .” Pittston Coal Group v. Sebben, 488 U. S. 106, 115 (1988). As respondent notes, even the legislative history of § 201—whose text explicitly includes devices—contains only scant references to devices.
Petitioner suggests that it was “the 1984 Roche decision which prompted enactment of [§ 202],” Brief for Petitioner 20, n. 13, which should therefore be regarded as quite independent of the simultaneously enacted patent-term extension of § 201. Undoubtedly the decision in Roche prompted the proposal of § 202; but whether that alone accounted for its enactment is quite a different question. It seems probable that Congress—for the reasons we discuss in text—would have regarded § 201 and § 202 as related parts of a single legislative package, as we do.
We cannot readily imagine such situations (and petitioner has not described any), except where there is good enough reason for the difference. Petitioner states that disequilibrium of this sort will often occur because the § 271(e)(1) noninfringement provision applies “whether the patent term is extended or not,” and even with respect to “patents which cannot qualify for a term extension.” Reply Brief for Petitioner 11. But if the patent term is not extended only because the patentee does not apply, he surely has no cause for complaint. And the major reason relevant patents will not qualify for the term extension is that they pertain to “follow-on” drug products rather than “pioneer” drug products, see §§ 156(a)(5)(A), 156 (f)(2); Fisons pic v. Quigg, 876 F. 2d 99 (CA Fed. 1989). For these, however, the abbreviated regulatory approval procedures established by Title I of the 1984 Act, 98 Stat. 1585, see 21 U. S. C. §§ 355(b)(2), (j), eliminate substantial regulatory delay at the outset of the patent term and thus eliminate the justification for the § 156 extension.
Petitioner argues that there was good reason for Congress to establish an infringement exemption with respect to drugs but not devices, since testing of the latter does much greater economic harm to the paten-tee. Devices, petitioner contends, are much more expensive than drugs ($17,000 apiece for respondent’s allegedly infringing defibrillators); and many have only a small number of potential customers, who will purchase only a single device each, so that depleting the market through testing may do substantial harm. Brief for Petitioner 30-31. These concerns, however, apply with respect to certain drugs as well. According to one source, a year’s dosage of Cyclosporine (used to suppress rejection of new organs) costs from $5,000 to $7,000; of AZT (used to treat AIDS) $8,000; of Monoclate (used to speed blood clotting in hemophiliacs) $25,000; and of Growth Hormone (used to treat dwarfism) $8,000 to $30,000. A. Pollack, The Troubling Cost of Drugs That Offer Hope, N. Y. Times, Feb. 9, 1988, p. A1, col. 3. Another new drug, Tissue Plasminogen Activator, used in the treatment of heart attacks to dissolve blood clots, costs $2,200 per dose and is prescribed for only a single dose. Ibid. Moreover, even if the factors petitioner mentions could explain the omission from § 271(e)(1) of medical devices, they could not explain the omission of food additives and color additives.
It is true that § 202, if interpreted to apply to all products regulated by the FDCA and other drug-regulating statutes, has a product coverage that includes other products, in addition to new animal drugs and veterinary biological products, not numbered among the specifically named products in § 201—for example, food, infant formulas, cosmetics, pesticides, and vitamins. But for the § 202 exemption to be applicable, the patent use must be “reasonably related to the development and submission of information under” the relevant law. New animal drugs and veterinary biological products appear to be the only additional products covered by drug-regulating statutes for which the requirement of premarket approval—and hence the need for “development and submission of information”—existed. With respect to food, infant formulas, cosmetics, and pesticides, for example, the FDCA merely established generally applicable standards that had to be met. See, e. g., 21 U. S. C. § 341 (food); § 350a (infant formula); § 361 (cosmetics); § 346a (pesticides); cf. § 350 (vitamins).
It must be acknowledged that the seemingly complete product correlation between § 201 and § 202 was destroyed in 1986, when, without adding “new infant formula” to the defined products eligible for the patent-term extension under § 156, Congress established a premarket approval requirement for that product, and thus automatically rendered it eligible for the § 271(e)(1) exemption from patent infringement. See Pub. L. 99-570, § 4014(a)(7), 100 Stat. 3207-116, codified at 21 U. S. C. § 350a(d). That subsequent enactment does not change our view of what the statute means. That isolated indication of lack of correlation between § 156 and § 271(e)(1) is in any event contradicted by the 1988 amendment that added most new animal drugs and veterinary biological products to § 156 and simultaneously deleted from § 271(e)(1) the infringement exception for those products. See Generic Animal Drug and Patent Term Restoration Act, 102 Stat. 3971, 3984-3989.
Although petitioner has not challenged § 271(e)(1) on constitutional grounds, it argues that we should adopt its construction because of the “serious constitutional question under the takings clause of the Fifth Amendment . . . [that would arise] if the statute is interpreted to authorize the infringing use of medical devices.” Brief for Petitioner 31. We do not see how this consideration makes any difference. Even if the competitive injury caused by the noninfringement provision is de minimis with respect to most drugs, surely it is substantial with respect to some of them—so the “serious constitutional question” (if it is that) is not avoided by petitioner’s construction either.
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_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.
James Edward WINGO, Jr., Appellant, v. UNITED STATES of America, Appellee.
No. 13187.
United States Court of Appeals Sixth Circuit.
May 31, 1957.
James Rutherford, Nashville, Tenn., for appellant.
Fred Elledge, Jr., and James R. Tuck, Nashville, Tenn., for appellee.
Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.
PER CURIAM.
Appellant, in this proceeding under Section 2255, Title 28 U.S.Code, seeks to vacate judgment imposed in the U. S. District Court on the ground of prejudicial newspaper publicity during the overnight recess of the jury, during which the jurors separated and went to their respective homes. Briggs v. United States, 6 Cir., 221 F.2d 636, 638. Following a hearing in which appellant introduced the newspaper articles complained of but no other evidence on the issue, the District Judge dismissed the proceeding.
The question presented could have and should have been raised by motion for mistrial in the trial of the case in the District Court. No appeal was taken from the judgment on the verdict. Compare Briggs v. United States, supra; Krogmann v. United States, 6 Cir., 225 F.2d 220, 228. The provisions of Section 2255, Title 28 U.S.Code, cannot be used as a substitute for appeal. Sunal v. Large, 332 U.S. 174, 178-179, 67 S.Ct. 1588, 91 L.Ed. 1982; Ford v. United States, 6 Cir., 234 F.2d 835, 836.
The appellant is in custody under a state sentence, not the sentence in the federal court, which he is attacking in this proceeding. If the sentence under attack should be held invalid, it would not result in appellant’s release from confinement. The present proceeding is premature and will not lie. Duggins v. United States, 6 Cir., 240 F.2d 479.
The judgment is affirmed.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
sc_casesource
|
022
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
JERSEY SHORE STATE BANK v. UNITED STATES
No. 85-1736.
Argued December 8, 1986
Decided January 20, 1987
Rehnquist, C. J., delivered the opinion for a unanimous Court.
Martin A. Flayhart argued the cause and filed briefs for petitioner.
Alan I. Horowitz argued the cause for the United States. With him on the brief were Solicitor General Fried, Assistant Attorney General Olsen, Deputy Solicitor General Lau-ber, Wynette J. Hewett, and Bruce R. Ellisen.
Briefs of amici curiae urging reversal were filed for First Alabama Bank by Brock B. Gordon and Alan C. Christian; and for the American Bankers Association by John J. Gill III and Michael F. Crotty.
Chief Justice Rehnquist
delivered the opinion of the Court.
Subtitle C of the Internal Revenue Code of 1954, 26 U. S. C. § 3101 et seq. (Code), imposes a number of employment taxes, among which are the income tax withheld from an employee’s wages and the Social Security tax. The Code divides the burden of the Social Security tax between the employer and the employee, but imposes the income tax on the employee alone. The employer has responsibility, however, for both paying its share of the Social Security tax and withholding from the employee’s wages the income tax and the employee’s share of the Social Security tax. If the employer fails to pay over the withheld Social Security and income taxes to the Government, the employer is liable for their payment. Within 60 days of making an assessment of unpaid taxes against an employer, the Government is required, under § 6303(a) of the Code, to provide the employer with notice of the assessment and demand for payment. In some instances, a person other than the employer, such as a lender, may directly or indirectly pay the employee’s wages. Section 3505 of the Code provides that such a person may be personally liable if the employee’s Social Security and income taxes are not withheld and paid to the Government. This case presents the question whether § 6303(a) requires the Government to proyide notice and demand for payment to a lender before bringing a civil suit against the lender to collect sums for which it is liable under § 3505. We hold that it does not.
The United States brought the present action against Jersey Shore State Bank in the United States District Court for the Middle District of Pennsylvania, seeking a determination that Jersey Shore was personally liable under §3505 for amounts reflecting unpaid taxes required to be withheld from the wages of the employees of Pennmount Industries. The Government claimed that Jersey Shore paid wages directly to Pennmount employees during the fourth quarter of 1977 through the first quarter of 1980, thereby making it liable under § 3505(a) for a sum equal to the full amount of the unpaid withholding taxes for that period. In the alternative, the complaint alleged that, for the same period, Jersey Shore supplied funds to Pennmount for the wages of Penn-mount employees “with actual notice and knowledge” that Pennmount “did not intend or would not be able to make timely payment or desposits [sic] of the . . . taxes required to be deducted and withheld” from the wages. App. to Pet. for Cert. 40a-41a. Based on this latter allegation, the Government asserted that Jersey Shore was liable under § 3505(b) for 25 percent of the amount of funds supplied to Pennmount.
The District Court granted summary judgment in favor of Jersey Shore, holding that § 6303(a) requires the Government to send notice of an assessment against an employer to a third-party lender liable under §3505. 628 F. Supp. 15 (MD Pa. 1985). Because the United States conceded that it had not provided Jersey Shore with notice of the assessments against Pennmount pursuant to § 6303(a), the court concluded that the suit against Jersey Shore was barred. The Court of Appeals for the Third Circuit reversed. 781 F. 2d 974 (1986). We granted certiorari to resolve the intercircuit conflict over the issue decided by the Court of Appeals. 476 U. S. 1157 (1986). We now affirm.
Section 6303(a) requires notice of an assessment to “each person liable for the unpaid tax.” According to Jersey Shore, this phrase clearly describes a third-party lender liable under §3505 for unpaid withholding taxes assessed against an employer. The relationship between § 3505 and § 6303(a), however, is not as clear as Jersey Shore maintains. Section 3505 does not declare that a lender is “liable for the unpaid tax.” Instead, the section imposes liability on the lender for all or part of “a sum equal to the taxes.” §§ 3505(a),(b).
Other portions of the text of § 6303(a) further demonstrate a lack of connection between that section and § 3505. Section 6303(a) not only provides that the Government shall give notice of an assessment “to each person liable for the unpaid tax,” but it also requires notice “stating the amount” assessed and “demanding payment thereof.” §6303(a). Notice complying with these latter two requirements may have little meaning for a third-party lender. In the first place, the assessment against the employer may include the employer’s share of unpaid Social Security taxes for which the lender is not liable. See § 3505; H. R. Rep. No. 1884, 89th Cong., 2d Sess., 21 (1966) (a lender “is not liable for the employer’s portion of payroll taxes”); S. Rep. No. 1708, 89th Cong., 2d Sess., 23 (1966) (same). Even where the assessment does not include such taxes, the lender’s liability could equal the amount stated in the notice only if the lender provided payroll financing throughout the time period reflected in the assessment. Moreover, the chances are slim that the notice amount would be accurate for lenders liable only under § 3505(b), which limits a lender’s exposure to 25 percent of the funds supplied to the employer. Accordingly, if sent to a lender, the notice required under § 6303(a) is likely to demand payment of an amount different from that for which the lender is liable. We find it improbable that Congress intended such a result. Reading the two sections together, we agree with the Court of Appeals that § 6303(a) is most logically read not to apply where the Government seeks to collect from a lender under § 3505.
In arguing to the contrary, Jersey Shore urges that it would be fundamentally unfair not to require the Government to provide lenders with § 6303(a) notice. Jersey Shore first maintains that, because employers and lenders are similarly situated under the Code, the procedural requirements applicable to employers also must be accorded to lenders. But even assuming that § 6303(a) notice would provide lenders with meaningful information, we are unpersuaded by this contention. Under the collection mechanism's established by the Code, employers and lenders are in very different positions. While employers are subject to the Government’s summary collection procedures soon after unpaid employment taxes are assessed, see, e. g., §§6321, 6322, 6331, 6335, the legislative history of § 3505 makes clear that the Government may forcibly collect against a lender only by filing a civil suit. See H. R. Rep. No. 1884, 89th Cong., 2d Sess., 66 (1966) (where a third-party does not voluntarily satisfy the liability imposed by §3505, “the United States may collect such liability by appropriate civil proceeding”). An employer therefore has a far greater need for an assessment notice than third-party lenders, who are not subject to summary collection procedures.
We also reject Jersey Shore’s related contention that a third-party lender is unfairly prejudiced by lack of an assessment notice because of the effect of an assessment on the statute of limitations for collection suits. Under the general rule set forth in § 6501(a), “the amount of any tax imposed . . . shall be assessed within 3 years after the return was filed . . . and no proceeding in court without assessment for the collection of such tax shall be begun after the expiration of such period. ” Nevertheless, where a proper assessment has been made, the unpaid tax generally “may be collected by levy or by a proceeding in court. . . begun. . . within 6 years after the assessment.” § 6502(a)(1). Under Jersey Shore’s reading of these provisions, the Government enjoys an additional 6-year limitations period for collecting against a lender if it makes an assessment against the employer within three years after the corresponding employment tax return is filed. Jersey Shore submits that Congress could not have intended the Government to benefit from this longer statute of limitations when it seeks to collect against a lender without also requiring the Government to provide the lender with notice of the assessment against the employer.
Assuming, without deciding, that Jersey Shore’s reading of the statute of limitations provisions is correct, we are not convinced that they render our construction of § 6303(a) implausible. A lender is not liable under §3505 unless it either “pays wages directly” to an employee or supplies funds for the wages with “actual notice or knowledge” that the employer is either unable to make timely payment of the required withholding taxes or has no intention of doing so. The lender is deemed to have such actual notice or knowledge from the time the lender, in the exercise of due diligence, would have been aware that the employer would not or could not make timely payment. § 6323(i)(l). Accordingly, a prudent lender could be alerted to its liability under § 3505 at the time it engaged in what the Government describes as “net payroll financing,” a practice whereby the lender provides funds for payment of employees’ net wages, but not funds for payment of withholding taxes. Thus, even without § 6303(a) notice, such a lender could take steps to protect itself against the possibility of a future §3505 suit. The Committee Reports concerning §3505 demonstrate that Congress considered precautions third parties could take to protect themselves:
“[S]ureties can protect themselves against any losses attributable to withholding taxes by including this risk of liability in establishing their premiums, and lenders by including the amounts in their loans and taking adequate security.” S. Rep. No. 1708, 89th Cong., 2d Sess., 23 (1966); H. R. Rep. No. 1884, 89th Cong., 2d Sess., 22 (1966).
As the Court of Appeals recognized, this passage suggests that “Congress envisioned a system in which third parties would take their potential liability under section 3505 into consideration at the time they entered into the transaction exposing them to liability under the statute.” 781 F. 2d, at 982.
For the foregoing reasons, we conclude that Congress did not intend to require the Government to provide a lender with notice under § 6303(a) before bringing a civil suit to collect under § 3505. The judgment of the Court of Appeals for the Third Circuit is therefore
Affirmed.
Section 3506(a) provides, in pertinent part:
“[I]f a lender, surety, or other person, who is not an employer . . . with respect to an employee,. . . pays wages directly to such an employee . . . , such lender, surety, or other person shall be liable in his own person and estate to the United States in a sum equal to the taxes (together with interest) required to be deducted and withheld . . . .”
Section 350503) provides, in pertinent part:
“If a lender, surety, or other person supplies funds to ... an employer for the specific purpose of paying wages of the employees of such employer, with actual notice or knowledge . . . that such employer does not intend to or will not be able to make timely payment or deposit of the amounts of tax required ... to be deducted and withheld by such employer . . . , such lender, surety, or other person shall be liable in his own person and estate to the United States in a sum equal to the taxes (together with interest) which are not paid over to the United States by such employer. However, . . . the liability of such lender, surety, or other person shall be limited to an amount equal to 25 percent of the amount so supplied to . . . such employer for such purpose.”
Section 6303(a) provides, in pertinent part:
“Where it is not otherwise provided by this title, the Secretary shall, as soon as practicable, and within 60 days, after the making of an assessment of a tax pursuant to section 6203, give notice to each person liable for the unpaid tax, stating the amount and demanding payment thereof.”
One judge dissented from the majority opinion, arguing that the plain language of § 6303(a) required that the Government provide notice to the lender.
In addition to the Court of Appeals for the Third Circuit, four other Circuits have addressed whether the Government must provide § 6303(a) notice to third parties liable under § 3506. See United States v. Messina Builders & Contractors Co., 801 F. 2d 1029 (CA8 1986) (§ 6303(a) notice required), cert. pending, No. 86-1007; United States v. Hunter Engineers & Constructors, Inc., 789 F. 2d 1436 (CA9 1986) (§ 6303(a) notice not required), cert. pending, No. 86-209; United States v. Merchants National Bank of Mobile, 772 F. 2d 1522 (CA11 1985) (§ 6303(a) notice required), cert. pending, No. 85-1480; United States v. Associates Commercial Corp., 721 F. 2d 1094 (CA7 1983) (§ 6303(a) notice required); see also United States v. Friedman, 739 F. 2d 252 (CA7 1984) (failure to provide notice within 60 days of assessment will not bar suit where Government has provided notice before assessment to person liable under § 3505).
Jersey Shore argues that this passage does not relate to §3505, but instead refers only to an amendment to the Miller Act concerning the requirements for performance bonds on public works. It is true that the passage appears in each Committee Report under subheadings referencing the Miller Act. In both Reports, however, the passage immediately follows a discussion of lenders, sureties, and other persons liable under § 3505 and is prefaced with the phrase “[i]n the cases discussed above.” Thus, the context of the passage makes clear that it relates to § 3505.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
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.
CALIFORNIA STATE AUTOMOBILE ASSOCIATION INTER-INSURANCE BUREAU v. MALONEY, INSURANCE COMMISSIONER.
No. 310.
Argued March 8, 1951.
Decided April 23, 1951.
Moses Lasky argued the cause for appellant. With him on the brief were Maurice E. Harrison and Herman Phleger.
Harold B. Haas, Deputy Attorney General of California, argued the cause for appellee. With him on the brief were Edmund G. Brown, Attorney General, and T. A. Westphal, Jr., Deputy Attorney General. Fred N. How-ser, then Attorney General, was with Mr. Haas and Mr. Westphal on a motion to dismiss or affirm.
Nathaniel L. Goldstein, Attorney General, Wendell P. Brown, Solicitor General, and John C. Crary, Jr., Assistant Attorney General, filed a brief for the State of New York, as amicus curiae, supporting appellee.
Mr. Justice Douglas
delivered the opinion of the Court.
Appellant is an unincorporated association which the California District Court of Appeal analogizes to a mutual insurance corporation. The details of its organization and operation are not important here. It is supervised by the Insurance Commissioner of California, like other insurance companies doing a liability insurance business. It was formed to write automobile insurance to a select group of members at a lower cost than the then prevailing rate. A California law requiring proof of financial responsibility from certain people before issuing them a license to drive a car, provides that a person who does not pay a judgment of $100 or more arising out of an automobile accident has his driver’s license suspended, and the suspension can be lifted only by paying the judgment and establishing his ability to pay claims arising from future accidents. That ability to pay may be established by proof that the person is insured, by posting a surety bond, or by deposit of $11,000 in cash. Cal. Vehicle Code, 1943, §§ 410, 414. Another law requires operators of trucks for hire to supply such evidence of financial responsibility before they may get permits to operate trucks. Cal. Stat. 1935, c. 312.
One result of these laws was to make it impossible for a large number of drivers — classified as poor risks by the insurance companies and not possessing enough resources to get a surety bond or to make the cash deposit — to receive drivers’ licenses to operate motor vehicles. Some of these people were poor risks, others were not. Many hardship cases developed among people who were dependent on the use of the highways for a living. There was a proposal that California go into the insurance business and insure these and other risks. The insurance companies countered by adopting a voluntary assigned risk plan under which all automobile insurance companies doing business in California undertook to insure some, though not all, of the groups unable to obtain insurance. This plan, approved by California’s Insurance Department, provided for the allocation of applicants to the subscribing insurers in proportion to the amount of automobile insurance written by each in the preceding year.
The voluntary plan did not reach all applicants. Moreover, appellant withdrew from it, causing the other insurers to be reluctant to continue it. Thereupon the legislature enacted the Compulsory Assigned Risk Law. Cal. Stat. 1947, c. 39, p. 525, as amended, c. 1205. It provides that the Insurance Commissioner shall approve “a reasonable plan for the equitable apportionment” among insurers of applicants for automobile insurance “who are in good faith entitled to but are unable to procure such insurance through ordinary methods.” Cal. Ins. Code, 1947, § 11620. It is mandatory on all insurers to subscribe to the plan. Id. §§ 11625,11626.
The plan approved by the Commissioner was objectionable to appellant, who refused to subscribe to it. The Commissioner, acting pursuant to authority granted him, suspended appellant’s permit to transact automobile liability insurance in California. Appellant contested the suspension in the California courts. The District Court of Appeal sustained the act against the claim that it violated the Due Process Clause of the Fourteenth Amendment. 96 Cal. App. 2d 876, 216 P. 2d 882. A petition for hearing was denied by the Supreme Court. The case is here on appeal. 28 U. S. C. § 1257 (2).
Appellant assails the constitutionality of the Act under the Due Process Clause of the Fourteenth Amendment on the following grounds: it commands insurers to enter into contracts and to incur liabilities against their will; it forces on insurers contracts that have abnormal risks and from which financial loss may be expected; it requires appellant to alter its type of business from a cooperative with a select membership to a venture insuring members of the general public.
Appellant in support of its contentions presses Michigan Commission v. Duke, 266 U. S. 570, and Frost Trucking Co. v. Railroad Comm’n, 271 U. S. 583, on us. Those cases held that private carriers by motor vehicle could not consistently with Due Process be converted into public carriers by legislative fiat nor be allowed to use the public highways only on condition that they become common carriers. We put those cases to one side. To be sure, appellant is required to insure members of a different group than the select one it voluntarily undertook to serve. But there are important restrictions on the financial commitments incident to the broadened undertaking. We were advised on the argument that the premiums chargeable can be commensurate with the greater risks of the new business. Confiscation is therefore not a factor in the case. Moreover, the California statute provides for an equitable apportionment of the assigned risks among all insurers, not that appellant serve all comers. Furthermore, uninsurable risks are eliminated from the plan; and policies issued may provide limited coverage of $5,000-110,000.
The case in its broadest reach is one in which the state requires in the public interest each member of a business to assume a pro rata share of a burden which modern conditions have made incident to the business. It is therefore not unlike Noble State Bank v. Haskell, 219 U. S. 104, which sustained a state law assessing each state bank for the creation of a depositors’ guaranty fund. What was there said about the police power — that it “extends to all the great public needs” and may be utilized in aid of what the legislative judgment deems necessary to the public welfare (p. Ill) — is peculiarly apt when the business of insurance is involved — a business to which the government has long had a “special relation.” See Os born v. Ozlin, 310 U. S. 53, 65, 66. Here, as in the banking field, the power of the state is broad enough to take over the whole business, leaving no part for private enterprise. Mountain Timber Co. v. Washington, 243 U. S. 219; Osborn v. Ozlin, supra, p. 66. The state may therefore hold its hand on condition that local needs be serviced by the business. Osborn v. Ozlin, supra, was such a case; it sustained on that theory Virginia’s law requiring Virginia residents to have a share in writing casualty and surety risks in Virginia. The principle of Osborn v. Ozlin now presses for recognition in a situation as acute as any with which the states have had to deal. Highway accidents with their train of property and personal injuries are notoriously important problems in every community. Clearing the highways of irresponsible drivers, devising ways and means for making sure that compensation is awarded the innocent victims, and yet managing a scheme which leaves the highways open for the livelihood of the deserving are problems that have taxed the ingenuity of law makers and administrators.
Whether California’s program is wise or unwise is not our concern. See Olsen v. Nebraska, 313 U. S. 236; Lincoln Union v. Northwestern Co., 335 U. S. 525. The problem is a local one on which views will vary. We cannot say California went beyond permissible limits when it made the liability insurance business accept insurable risks which circumstances barred from insurance and hence from the highways. Appellant’s business may of course be less prosperous as a result of the regulation. That diminution in value, however, has never mounted to the dignity of a taking in the constitutional sense. See Noble State Bank v. Haskell, supra, p. 110; Block v. Hirsh, 256 U. S. 135, 155.
Affirmed.
Mr. Justice Black would dismiss the appeal on the ground that the constitutional questions are frivolous.
Under the plan approved by the Commissioner, Cal. Administrative Code, 1947, Tit. 10, §§ 2400-2498, there are several categories of people excluded. Those excluded cover a wide range. The following are illustrative: those convicted more than once, within three years of application, of manslaughter or negligent homicide resulting from operation of the vehicle; those convicted more than twice, in the same three-year period, of driving while intoxicated or under the influence of liquor; those addicted to use of drugs. § 2431.
State regulation of the insurance business has been upheld in a wide variety of circumstances against the claim that the law violated the Due Process Clause of the Fourteenth Amendment: See Hooper v. California, 155 U. S. 648, requirement of license and bond; Orient Insurance Co. v. Daggs, 172 U. S. 557, fixing recovery at insured value; Nutting v. Massachusetts, 183 U. S. 553, license and deposit of security; Carroll v. Greenwich Insurance Co., 199 U. S. 401, prohibition of combinations or agreements between companies; Northwestern Life Ins. Co. v. Riggs, 203 U. S. 243, limitation of defenses; Whitfield v. Aetna Life Ins. Co., 205 U. S. 489, same; German Alliance Ins. Co. v. Hale, 219 U. S. 307, statutory penalty against rate-fixing combinations; German Alliance Ins. Co. v. Lewis, 233 U. S. 389, rate regulations; Mountain Timber Co. v. Washington, 243 U. S. 219, workmen’s compensation act; La Tourette v. McMaster, 248 U. S. 465; licensing of brokers; National Union Fire Ins. Co. v. Wanberg, 260 U. S. 71, limiting the time for rejection of hail insurance policies; Merchants Mutual Automobile Ins. Co. v. Smart, 267 U. S. 126, regulation of liability under indemnity policies; Aetna Insurance Co. v. Hyde, 275 U. S. 440, rate regulations; O’Gorman & Young v. Hartford Fire Ins. Co., 282 U. S. 251, regulation of agents’ commissions; Hardware Dealers Mutual Fire Ins. Co. v. Glidden Co., 284 U. S. 151, prescribing compulsory arbitration provisions; Life & Casualty Ins. Co. v. McCray, 291 U. S. 566, additional recovery for failure to pay on demand; Osborn v. Ozlin, 310 U. S. 53, requiring participation by resident agents; Hoopeston Canning Co. v. Cullen, 318 U. S. 313, regulation of reciprocal insurance associations; State Farm Mutual Automobile Ins. Co. v. Duel, 324 U. S. 154, reserve requirements; Robertson v. California, 328 U. S. 440, licensing of brokers; Daniel v. Family Security Life Ins. Co., 336 U. S. 220, separation of life insurance and undertaking businesses.
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_appbus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
ATLAS HOTELS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 74-2066.
United States Court of Appeals, Ninth Circuit.
July 9, 1975.
Clifford L. Duke, Jr. (argued), San Diego, Cal., for petitioner.
Marjorie Gofreed (argued), Washington, D.C., for respondent.
Before CHAMBERS and KOELSCH, Circuit Judges, and McNICHOLS, District Judge.
Honorable Ray McNichols, Chief Judge, United States District Court for the District of Idaho, sitting by designation.
OPINION
PER CURIAM:
This case is before the Court on. the petition of Atlas Hotels, Inc. (hereinafter “Atlas”), to review and set aside an Order of the National Labor Relations Board (henceforth “Board”), directing it to bargain collectively with a union. The Board has filed a cross-petition for enforcement of an order finding petitioner in violation of Section 8(a)(5) and (1) of the National Labor Relations Act (hereinafter “Act”). This petition is filed pursuant to Sections 10(e) and (f) of the Act, as amended (29 U.S.C.A. § 160(e) and (f)). The Board’s decision ánd orders are reported at 205 N.L.R.B. 47 and 210 N.L.R.B. 86.
Atlas operates five “motor-hotels” in San Diego, California, and these hotels are located within a two-mile radius of San Diego’s “Hotel Circle,” a cluster of motels, hotels, dining, recreation and convention facilities catering to transient visitors and conventions. Each of the five Atlas hotels is headed by a manager and divided in departments. Department" heads are in charge of the various departments and they are directly responsible to their respective hotel manager.
Employees at all the hotels are subject to common labor relations policies. Job classifications are established on a company-wide basis and the employees within each classification receive the same general wages and fringe benefits. Transfer of employees among the five hotels is limited to selected employees in management training programs. Apparently, employee interchange is minimal, never involves bakery or bakery sanitation personnel, and primarily occurs in unusual situations where extra help is needed at one of the other Atlas hotels to augment the regular work force. E. g., if a large banquet were planned, food-related employees from one hotel might assist food-related, employees at another hotel in serving the dinner.
The largest of the hotels, the Town & Country Hotel, contains 600 of Atlas’ 1300 guest rooms, a coffee shop, restaurant, cocktail lounge, supper club, 17 banquet rooms and a number of kitchens. An adjoining convention center provides meeting and dining facilities for upwards of 2,000 people. The Atlas bakery is housed in a separate area, adjacent to the kitchen, in this convention center, but location has little or no impact upon services. Excepting sandwich bread and hamburger rolls obtained from other sources, the bakery produces all the baked goods used at the five hotels and convention center; the Town & Country Hotel enjoys no special treatment due to proximity.
The bakery is open seven days a week and operates on two shifts, from about 10:00 p. m. to 6:00 a. m. and from 6:00 a. m. or 7:00 a. m. to mid-afternoon, under the supervision of a “director of baking.” The “director of baking” orders supplies, schedules production and keeps time for the bakery employees; his immediate supervisor is the food and beverage manager of the Town & Country Hotel, who also serves as “executive chef” for all five hotels.
Altogether, seven people are employed in the bakery, and they were hired specifically for bakery work either because of their prior experience or their interest in learning the trade. During the course of their work they perform the usual duties of bakers, and utilize specialized baking equipment in the large scale production of cakes, pies, pastries and other baked goods. With the exception of a bakery deliveryman, who spends an undisclosed portion of his time primarily delivering baked goods and the remainder assisting bakers, all bakery employees work exclusively in the bakery.
The Bakery and Confectionery Workers’ International Union of America, Local No. 315 (hereinafter “Union”), which has traditionally devoted itself to serving the interests of baking employees, sought to represent a unit of bakery and bakery sanitation workers employed at the Atlas bakery. Atlas objected, contending that some other unit would be more appropriate, particularly a unit comprising all of the production and maintenance employees at its five San Diego hotels. Additionally, there is no history of collective bargaining in the respective units urged by the parties, and no union seeks representation on a broader hotel-wide or company-wide unit.
The Union petitioned the Board for an election pursuant to Section 9(c) of the Act. A hearing was held on the matter, evidence presented, and on the basis of this evidence the Board found that the bakery employees constituted a separate unit appropriate for collective bargaining. Accordingly, the election was ordered.
Thereafter, Atlas requested a review of the decision, contending, inter alia, that the unit established was inappropriate for bargaining; that it represented a departure from traditional Board policy of single unit representation of manual employees in highly integrated hotel operations; and that the decision was based upon Board precedent overruled by this Court. However, the Board denied Atlas’ request on the ground that it raised no substantial issues warranting review.
After some initial dispute, the Union won the election and was certified as the collective bargaining representative of the bakers and bakery sanitation workers. In order to challenge the unit determination, Atlas refused to bargain and the Union filed an unfair labor practices charge with the Board. The Regional Director issued a complaint alleging that the refusal to bargain was unlawful, and Atlas answered asserting that the separate unit of bakers was inappropriate; that the unit was contrary to precedent; and that other units might also have been found appropriate and should therefore have been considered.
General Counsel for the Board moved for summary judgment on the ground that Atlas’ answer raised no issue which had not been litigated and determined in prior proceedings. The motion was granted, and the Board also found that, by refusing to recognize and bargain with the Union, Atlas had violated Section 8(a)(5) and (1) of the Act. 205 N.L. R.B. 47.
The Board filed an application for enforcement of its order and Atlas cross-petitioned for review. Shortly thereafter the Board moved to have the case remanded for reconsideration in light of a recent Ninth Circuit decision in which enforcement was denied a Board order under similar circumstances. The motion was granted, and in May, 1974, the Board filed a supplemental decision explicating and affirming its prior decision and order. 210 N.L.R.B. 86. Atlas then filed the petition at bar, and the essential issue before the Court on appeal is whether the bargaining unit established by the Board was appropriate under Section 9 of the Act.
The Act delegates to the Board the primary responsibility for determining the appropriate bargaining unit. N.L.R.A. § 9(b), 29 U.S.C.A. § 159(b); General Instrument Corporation v. N.L.R.B., 319 F.2d 420, 422 (4th Cir. 1963). And this Court has granted the Board great latitude in making these unit determinations. Gallenkamp Stores Co. v. N.L.R.B., 402 F.2d 525, 530 (9th Cir. 1968); Foreman & Clark, Inc. v. National Labor Relations Board, 215 F.2d 396, 405 (9th Cir. 1954); N.L.R.B. v. Merner Lumber and Hardware Company, 345 F.2d 770, 771 (9th Cir. 1965).
This broad delegation is somewhat limited by Section 9(c)(5) of the Act, which provides:
“In determining whether a unit is appropriate for the purposes specified in subsection (b) of this section the extent to which the employees have organized shall not be controlling.”
Nevertheless, the issue of unit determination is within the particular expertise of the Board, vested in that body by statute, and a Board decision, if not final, is rarely disturbed. National Labor Relations Board v. J. W. Rex Co., 243 F.2d 356, 359 (3rd Cir. 1957). In fact, courts recognize that such decisions, by necessity, involve a large measure of expertise and informed discretion. National Labor Relations Board v. J. W. Rex Co., supra, at 359; International Ass’n of Tool Craftsmen v. Leedom, 107 U.S.App.D.C. 268, 276 F.2d 514, 516 (1960). Hence, deference should be given the informed experience and judgment of an agency, Mourning v. Family Publications Service, Inc., 411 U.S. 356, 371-372, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973), and judicial interference confined to instances where there has been a clear, patent or flagrant abuse of discretion. Avila-Contreras v. McGranery, 112 F.Supp. 264, 268 (D.C.Cal.1953); Reece v. United States, 455 F.2d 240, 242 (9th Cir. 1972).
It is not necessary that the Board choose the most appropriate bargaining unit; it is sufficient if the unit chosen is within the range of units appropriate under the circumstances. State Farm Mutual Automobile Insurance Co. v. N.L.R.B., 411 F.2d 356, 358 (7th Cir. 1969); N.L.R.B. v. Bogart Sportswear Mfg. Co., Inc., 485 F.2d 1203, 1206 (5th Cir. 1973). Likewise, in arriving at a decision, the Board can consider the extent to which employees have organized, so long as the extent of organization is not the controlling reason. Foreman & Clark, Inc. v. National Labor Relations Board, supra, at 406; N.L.R.B. v. Metropolitan Life Insurance Co., 380 U.S. 438, 441-442, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965).
In the instant case the Board found: (1) that the Union traditionally represented the interests of bakery employees; (2) that the bakery employees worked at a specific trade; (3) that they worked in areas apart from other employees; (4) they were separately supervised; and (5) they had a minimum of contact with the other hotel staff. From these facts the Board reasonably concluded that the Atlas bakery workers were a separate unit appropriate for the purposes of collective bargaining. Even though there is evidence contrary to these findings; nevertheless, there is substantial evidence in the record to support the Board’s findings, and this renders them conclusive. N.L.R.A. § 10(e), 29 U.S.C.A. § 160(e); National Labor Relations Board v. Crompton-Highland Mills, Inc., 337 U.S. 217, 220, 69 S.Ct. 960, 93 L.Ed. 1320 (1949); N.L.R.B. v. Merner Lumber & Hardware Company, supra, at 771.
Furthermore, these findings indicate that the final unit decision was a reasoned, valid exercise of the Board’s delegated authority; not impermissibly controlled by the extent of organization nor a clear abuse of discretion under the circumstances.
In Westward-Ho Hotel Co. v. N.L.R.B., 437 F.2d 1110, 1114 (9th Cir. 1971) this Court noted that Board precedent had established a policy of single unit representation for manual employees in highly integrated hotel operations, with two exceptions: (1) where well defined area bargaining practices recognized a less than hotel-wide unit as appropriate, (2) where the enterprise in fact was not highly integrated, and a smaller unit was consistent with the true community of interest among the particular employees. And that where a Board decision is contrary to this established policy, it must be buttressed with sufficient reasons to overcome an inference that the decision was either arbitrary or controlled by the extent of organization. Id. at 1116.
However, our decision in Westward-Ho Hotel Co. v. N.L.R.B., supra, is not dispositive of this case. For under the particular circumstances of that case, the Court concluded that the reasons given by the Board were insufficient to explain its departure from established policy on grounds other than the extent of organization. Id. at 1117. This Court did not hold that those reasons were per se insufficient; since the Board has wide discretion in designating bargaining units, minor factual differences may justify opposite results. N.L.R.B. v. Cumberland Farms, Inc., 396 F.2d 866 (1st Cir. 1968).
In brief, facts and reasons given in the present case justify the Board’s determination that, rather than being an integral part of a hotel, petitioner’s bakery was in fact a separate and appropriate unit for purposes of collective bargaining. Therefore, the Order of the Board is affirmed and it will be enforced.
. Bakery and Confectionery Workers’ International Union of America, Local No. 315.
. The development and scope of this policy is judicially chartered in footnote number 4, Westward-Ho Hotel Co. v. N.L.R.B., 437 F.2d 1110, 1113 (9th Cir. 1971).
. Among the many supportive sources cited in his Decision and Direction of Election, the Regional Director made reference to Hotel Westward-Ho, 171 N.L.R.B. 173; later denied enforcement. Westward-Ho Hotel Co. v. N.L.R.B., 437 F.2d 1110 (9th Cir. 1971).
. A secret ballot election was held January 5, 1975, in which eight ballots were cast, three for the Union and three against, with two ballots being challenged. The Regional Director conducted an investigation and thereafter sustained the challenge to one ballot, and overruled the challenge to the second ballot. This second ballot was for the Union.
. Ramada Inns, Inc. v. N.L.R.B., 487 F.2d 1334 (9th Cir. 1973).
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_counsel1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
OVERSEAS NATIONAL AIRWAYS, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Saturn Airways, Inc., Universal Airlines, Inc., Seaboard World Airlines, Inc., Intervenors.
No. 683, Docket 33851.
United States Court of Appeals, Second Circuit.
Argued April 3, 1970.
Decided May 25, 1970.
Leonard N. Bebchick, Washington, D. C., for intervenor Saturn Airways, Inc.
Stephen D. Potts, Washington, D. C., for petitioner.
Paul Y. Seligson, Washington, D. C., for intervenor Universal Airlines, Inc.
John Michael Roach, Atty., Civil Aeronautics Board (Richard W. McLaren, Asst. Atty. Gen., Howard E. Shapiro, Atty., Dept, of Justice, Joseph B. Goldman, Gen. Counsel, Civil Aeronautics Board, O. D. Ozment, Deputy Gen. Counsel, Warren L. Sharfman, Associate Gen. Counsel, Litigation and Research, on the brief), for respondent.
Dudley B. Tenney, New York City, (Cahill, Gordon, Sonnett, Reindel & Ohl, Irwin Schneiderman, Philip R. Forlenza, New York City, Fisher, Gelband & Rodriguez, Washington, D. C., on the brief), for intervenor Seaboard World Airlines, Inc.
Before KAUFMAN and FEINBERG, Circuit Judges, and TIMBERS, District Judge
Chief Judge of the District of Connecticut, sitting by designation.
FEINBERG, Circuit Judge.
Petitioner Overseas National Airways, Inc. (“ONA”) and intervenors Saturn Airways, Inc. and Universal Airlines, Inc., collectively referred to as petitioners, seek review of two orders of the Civil Aeronautics Board, which refused to expand the scope of a proceeding before the Board. We hold that the orders are not final, and accordingly dismiss the petition for review.
I.
Petitioners are all parties in the Transatlantic Supplemental Charter Authority Renewal Case, Docket 20569, which was instituted in December 1968 by the CAB, Order 68-12-93, in response to the applications of ONA, Saturn and four other supplemental, or charter, carriers. The purpose of the proceeding as initially defined by the Board was to consider “the renewal of existing authority” held by the six applicants to provide transatlantic passenger charter transportation. In June 1969, by Order 69-6-25, the Board consolidated with Docket 20569 various other applications' for transatlantic passenger charter authority submitted by carriers who do not now have such authority; Universal is one of these additional applicants.
What has prompted petitioners to seek review is the Board’s refusal to expand the scope of the proceeding before it to include consideration of the related, but hitherto distinct, subject of transatlantic cargo charter authority. In its original Order 68-12-93, the Board refused to consider those aspects of petitioners’ applications which sought transatlantic cargo charter authority, and dismissed that portion of the applications without prejudice. The Board’s stated reason was “to limit the scope of this proceeding, thereby avoiding undue complication of the issues and delay.” After petitions for reconsideration had been filed, the Board did expand the scope of the proceedings somewhat, as has already been noted, to include consideration of applicants for transatlantic passenger charter authority not previously granted such authority, and in various other ways not here relevant. However, the Board held fast in its determination not to inject cargo charter questions into Docket 20569. In its Order 69-6-25, the Board noted that it had considered the question of transatlantic cargo charter authority less than three years before, and it was not convinced that “the present proceeding should be expanded to include a further review of that issue at this time.” In. the earlier case referred to by the Board, the Supplemental Air Service Proceeding, Docket 13795, the Board had continued the authority of Seaboard World Airlines, Inc., an intervenor in the present case aligned with the Board, to operate transatlantic cargo charters along with scheduled transatlantic cargo flights.
Petitioners persisted and again asked the Board to reconsider. By Order 69-9-49, dated September 9, 1969, the Board rejected arguments similar to those now presented to us, and refused for a third time to inject questions of cargo authority into the current passenger authority proceeding. The Board stated:
The argument advanced is that, unless the Board considers the cargo-carrying competence of each applicant, it would be denying due process since the degree of an applicant’s cargo ability could be a factor in its selection for licensing as a passenger carrier. We cannot accept this argument as valid and as requiring us to undertake the obviously broad expansion of the proceeding that would accompany the injection of cargo issues.
Order 69-9-49, supra
II.
At the outset, we must decide whether the orders denying consolidation are interlocutory and not subject to judicial review at this time. There is also a question whether the orders are ever judicially reviewable, since they involve foreign air transportation and ultimate approval by the President. The principal authority on both of these issues is Chicago & Southern Air Lines, Iñc. v. Waterman Steamship Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948), in which the Supreme Court dismissed a petition to review a CAB order, issued with presidential approval, which granted one application for an overseas air route and denied another. The Court held:
We conclude that orders of the Board as to certificates for overseas or foreign air transportation are not mature and are therefore not susceptible to judicial review at any time before they are finalized by Presidential approval. After such approval has been given, the final orders embody Presidential discretion as to political matters beyond the competence of the courts to adjudicate.
Id. at 114, 68 S.Ct. at 437. According to the Board, petitioners are therefore not entitled to judicial intervention. On the one hand, the orders sought to be reviewed are not “final” because they fail to “impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process.” Id. at 113, 68 S.Ct. at 437. On the other hand, if they are “final” in the above sense, they are not reviewable because they derive their vitality “from the exercise of unreviewable Presidential discretion.” Id.
To escape the dilemma posed by Waterman, petitioners attempt to place the orders in a narrow area not reached by that decision. Although the matter is not free from doubt, we have previously agreed with the District of Columbia Circuit that “the Waterman case does not ‘govern a situation where the action of the Board, before the matter reaches the President, is beyond the Board’s power to act.’ ” Pan American World Airways, Inc. v. Civil Aeronautics Board, 380 F.2d 770, 775 (2d Cir. 1967), aff’d by an equally divided court, 391 U.S. 461, 88 S.Ct. 1715, 20 L.Ed.2d 748 (1968). See American Airlines, Inc. v. Civil Aeronautics Board, 121 U.S.App.D.C. 120, 348 F.2d 349, 351-353 (1965). Accordingly, petitioners argue that the Board exceeded its statutory authority and acted unconstitutionally when it refused to consolidate their applications for cargo charter authority. Assuming arguendo that this statement of petitioners’ claim would avoid the problem of presidential discretion, the question remains whether the orders under attack are sufficiently “final” at this stage to allow review.
On this aspect of the case, petitioners stress the alleged interdependence of transatlantic cargo and passenger charter operations. We are told that the demand for transatlantic cargo charter service is now, and will be for the foreseeable future, too small to permit profitable operation unless this service is appended to some other activity, whether it be scheduled transatlantic cargo service like that now offered by Seaboard, or transatlantic passenger charter operations, the subject of Docket 20569. Petitioners claim that possession of cargo authority would strengthen them financially because it would increase revenues and reduce the need to fly an empty aircraft from place to place in order to pick up a passenger charter party, known as “ferry” flying. Thus, according to petitioners, the exclusion of the cargo charter issue severely prejudices their applications for passenger charter authority because they will be unable to demonstrate how they might operate at the level of efficiency which possession of cargo authority would permit.
While petitioners’ economics may possibly be correct — and on that we express no view — we do not see how that transforms the orders under attack into more than threshold procedural determinations, interlocutory in nature and not now subject to judicial review. In refusing to expand the scope of Docket 20569 to include transatlantic cargo, as well as passenger, charter transportation, the Board has not suggested that the question of transatlantic cargo charter authority will remain a closed one indefinitely, with Seaboard remaining the permanent beneficiary of Board inaction. It is our understanding that the Board has merely decided to defer consideration of this complex set of issues until such time as it determines is convenient and appropriate. Moreover, it has expressed a desire not to undertake in Docket 20569 what it apparently considers would be an overly broad and premature general review of transatlantic charter policy. The Board points out that both Seaboard’s cargo authority and the passenger authority at issue in Docket 20569 were originally granted on an experimental basis and that neither experiment has yet produced the contemplated experience required for an informed permanent solution. Thus, the Board’s threshold decision would seem to be within its discretion to determine the scope and priority of its proceedings. See, e.g., National Airlines, Inc. v. Civil Aeronautics Board, 129 U.S.App.D.C. 180, 392 F.2d 504, 509 (1968); City of San Antonio v. Civil Aeronautics Board, 126 U.S.App.D.C. 112, 374 F.2d 326, 329 (1967); Frontier Airlines, Inc. v. Civil Aeronautics Board, 349 F.2d 587, 590-591 (10th Cir. 1965). Accordingly, we are not disposed to interfere with the Board. Our reluctance to interfere is not altered by the argument that exclusion of evidence of possible revenue from carge operations prejudices petitioners’ applications for passenger authority; if reviewable at all, that point can be made when, if ever, petitioners are denied passenger authority.
However, petitioners claim that while it does not seem that the Board has ruled upon the merits of their applications for cargo authority, as a practical matter it has, and in doing so has denied them due procees. For this argument, petitioners rely chiefly on Ashbacker Radio Co. v. Federal Communications Commission, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945), which we recently characterized as holding that:
if an agency’s award of one application for operating authority would be mutually exclusive as a matter of fact with the award of others before the agency, the competing applications must be considered contemporaneously.
Mohawk Airlines, Inc. v. Civil Aeronautics Board, 412 F.2d 8, 9 (2d Cir. 1969). Petitioners argue that cargo and passenger authority are “mutually exclusive” under Ashbacker because those supplemental carriers who lose out in the current transatlantic passenger charter proceeding will never be able to compete for similar cargo authority when the Board finally reconsiders that issue, since without passenger charter authority it makes no economic sense to seek cargo charter authority.
Application of the Ashbacker doctrine frequently raises complex problems. See 1 K. Davis, Administrative Law § 8.12 (1958) . Whether grants of authority are truly mutually exclusive is often difficult to determine. Moreover, the claim that an Ashbacker hearing has been improperly denied presents a delicate issue of timing of judicial review. See Note, Comparative Hearings for Air Route Authorizations: Transplanting the Ashbacker Doctrine, 40 N.Y.U.L.Rev. 928 (1965). The doctrine was originally based upon “a physical mutual exclusivity of two licenses” to operate a radio station. Delta Air Lines v. Civil Aeronautics Board, 107 U.S.App.D.C. 174, 275 F.2d 632, 637 (1959) , cert. denied, 362 U.S. 969 (1960). Citing the last-mentioned case, petitioners claim that the doctrine also extends to any situation where “as a matter of economic necessity,” the grant of some applications precludes the grant of others ; e. g., if the foreseeable traffic would support only two out of five carrier applicants. But even as expanded, the Ashbacker doctrine requires that a grant of authority to X do more than merely lessen the probability of an award to Y; it must make it impossible as a practical matter. According to petitioners, this is such a ease, and the Board’s orders must be reversed.
We do not agree. In Delta Air Lines, supra, the competing applicants essentially sought the right to render service over the same route. The claim here that anyone denied passenger charter authority in Docket 20569 can never hope to obtain cargo authority in the future presses Ashbacker very far, because it “compares” applicants for entirely distinct services. Since this would require consideration of different economic factors, the argument immensely complicates use of the Ashbacker doctrine in air route cases, an exercise already difficult enough; orie text has called application of Ashbacker in that context “confusing” with “the equities marginal.” L. Jaffe, Judicial Control of Administrative Action 445 (1965). Petitioners are already involved in Docket 20569 and may eventually obtain passenger authority, which would render their argument moot. In addition, the “mutual exclusivity” between transatlantic passenger and cargo charter applications, if such it be, is at best highly speculative. Cf. Eastern Air Lines, Inc. v. Civil Aeronautics Board, 271 F.2d 752 (2d Cir. 1959), cert. denied, 362 U.S. 970, 80 S.Ct. 954, 4 L.Ed.2d 901 (1960). We conclude that reversing the orders under attack is not compelled by Ashbacker and that “to do so at this stage * * * would be an invasion of the Board’s function.” United Air Lines, Inc. v. Civil Aeronautics Board, 97 U.S. App.D.C. 42, 228 F.2d 13, 15 (1955). See Eastern Air Lines, Inc. v. Civil Aeronautics Board, 100 U.S.App.D.C. 184, 243 F.2d 607 (1956); Frontier Airlines, Inc. v. Civil Aeronautics Board, supra.
Finally, petitioners urge that in excluding the issue of cargo charter authority in Docket 20569, the Board has neglected the public interest in making available the broadest degree of charter services over the North Atlantic. However, fashioning an inquiry to best serve the public interest is primarily a Board determination, and on the record before us, we do not think the Board has acted contrary to its mandate. Cf. Palisades Citizens Association, Inc. v. Civil Aeronautics Board, 420 F.2d 188 (D.C.Cir. 1969).
Accordingly, we conclude that judicial review of the orders under attack is not now warranted. The Board has not made any final determination on the merits of petitioners’ applications; at this stage of the proceeding it has neither exceeded its statutory powers nor denied petitioners due process. We are asked to compel the Board to consider now the complex issues of transatlantic cargo charter authority ; this we decline to do.
None of the other contentions made by petitioners warrant discussion. Because the orders complained of are not yet final, the petition for review is dismissed.
. “Supplemental air transportation” means “charter trips in air transportation.” 49 U.S.O. § 1301(33).
. Review of Order 69-9-49 is not sought, although petitioners have called it to our attention.
. 49 Ü.S.C. § 1461.
. We note that we deal only with citizen carriers in this case. See Pan American World Airways, Inc. v. Civil Aeronautics Board, 129 U.S.App.D.C. 159, 392 F.2d 483, 490-493 (1968). See generally Miller, The Waterman Doctrine Revisited, 54 Geo.L.J. 5 (1965).
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_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.
GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION NO. 89, Plaintiff-Appellant, v. AMERICAN RADIATOR & STANDARD SANITARY CORPORATION, Defendant-Appellee.
No. 14709.
United States Court of Appeals Sixth Circuit.
Nov. 8, 1962.
Ralph H. Logan, Louisville, Ky., Hardy, Logan & Tross, Louisville, Ky., on brief, for appellant.
J. Mack Swigert, Cincinnati, Ohio, S. L. Greenebaum, Louisville, Ky., of counsel, for appellee.
Before CECIL, Chief Judge, MC-ALLISTER, Circuit Judge, and LEVIN, District Judge.
PER CURIAM.
This is an appeal from an order granting summary judgment for the defendant in a suit brought to compel arbitration under section 301 of the National Labor Relations Act, 29 U.S.C. § 185. The sole question is whether the contracts entered into between the plaintiff union and the defendant employer required the employer to arbitrate the change from an incentive pay system to a straight hourly pay system for the plaintiff’s members.
The parties agree that the case is controlled by United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409. The plaintiff relies particularly on the following expression found on page 582, on page 1353 of 80 S.Ct.:
“An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.”
The court also said on page 584, on page 1354 of 80 S.Ct.: “A specific collective bargaining agreement may exclude contracting out from the grievance procedure.”
The Master Agreement between the parties contained both an arbitration provision and a no-strike clause. However, paragraph 3-c of the applicable Wage Plan Agreement, entered into subsequently, says in part:
“The Company may cancel any production standard or incentive application when new or changed conditions such as those referred to make it impracticable, in the Company’s judgment, to accurately measure the operation for incentive application. Thereafter, the hourly base rate for the job class to which the job is assigned shall apply.” [Emphasis added.]
Paragraph 4 of the Wage Plan Agreement, which provides that the grievance and arbitration procedures set out in the Master Agreement, shall be utilized only:
“(a) At any time after the initial agreement on the hourly base rate scale referred to in Paragraph 2-e, the accuracy of descriptions and the accuracy of the application of the evaluation factors described in the Job Evaluation Manual to new or changed jobs other than bench-mark jobs; and
“(b) The accuracy of the application of .sound and accepted work measurement techniques to the development of production standards by the Company.”
The language of paragraph 3-c clearly states that the employer’s judgment is controlling as to whether an incentive system should be in effect, and paragraph 4 does not include the dispute in question among the matters which are arbitrable. Therefore, this court holds that under the Agreement, the employer was not obligated to submit to arbitration.
Judgment affirmed.
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_usc1sect
|
1132
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Bruce PARKHURST, Dennis Madigan, James K. Pruett, M.C. Sturgis, Jose Ward, Joe Roth, et al., Plaintiffs-Appellants-Cross-Appellees, v. ARMSTRONG STEEL ERECTORS, INC., Defendant-Appellee-Cross-Appellant.
Nos. 87-6383. 87-6470.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 27, 1989.
Decided April 25, 1990.
Peter W. Cavette, Patrick M. Hevesy, Los Angeles, Cal., for plaintiffs-appellants-cross-appellees.
Robert E. Willard, Newport Beach, Cal., for defendant-appellee-cross-appellant.
Before NELSON and BOOCHEVER, Circuit Judges, and BROWNING, District Judge.
The Honorable William D. Browning, United States District Judge for the District of Arizona, sitting by designation.
PER CURIAM:
Appellants, trustees of six trust funds who manage multi-employer benefit plans, appeal the district court’s denial of statutory and contractual liquidated damages and the denial of interest on liquidated damages. Armstrong Steel Erectors cross-appeals challenging the award of attorneys’ fees.
1. Award of Liquidated Damages
We review district court interpretations of federal law de novo. United States v. Mortenson, 860 F.2d 948, 949 (9th Cir.1988). We apply the same standard where the district court interprets a contract without using extrinsic evidence. L.K. Comstock & Co. v. United Eng’rs & Constructors, Inc., 880 F.2d 219 (9th Cir.1989).
The Trust Funds assert that the district court should have awarded liquidated damages based either on ERISA or by the terms of the trust agreements. We have held that unpaid contributions must exist at the time of suit for statutory liquidated damages to be awarded. Idaho Plumbers and Pipefitters Health and Welfare Fund v. United Mechanical Contractors, Inc., 875 F.2d 212, 215-16 (9th Cir.1989). Because there were no unpaid contributions outstanding at the time the Trust Funds brought suit, no statutory liquidated damages are due.
The Trust Funds contend that our holding on this point in Idaho Plumbers was dictum as the entitlement to statutory damages was not an issue in that case. Nevertheless, the Idaho Plumbers position is well considered and we choose to follow it. Although the plaintiffs in Idaho Plumbers did not seek statutory liquidated damages, they did argue that the statutory provision supported their entitlement to contractual damages. Id. at 215. After reviewing the statutory language and the case law of other circuits, the Idaho Plumbers court determined that there is a statutory entitlement to liquidated damages only when there are unpaid contributions at the time of suit.
The Trust Funds alternatively contend that the trial court should have awarded liquidated damages as provided for by the terms of the trust agreements themselves, independent of ERISA’s enforcement provisions. The trial judge concluded that it would not “effectuate[ ] the policies behind ERISA and LMRA [Labor Management Relations Act] to give effect to the punitive liquidated damages provisions of the trust agreements.” Memorandum of Decision at 4, Parkhurst v. Armstrong Steel Erectors, CV 86-5590 WDK (C.D.Cal. August 25, 1987). The trial court arrived at this conclusion after weighing federal law’s approval of such damages when the contributions have not been made at the time suit is filed against the federal common law’s and California’s disfavor for liquidated damages provisions under certain circumstances. See Memorandum Decision at 3-4 (citing Bennett v. Machined Metals Co., Inc., 591 F.Supp. 600 (E.D.Pa.1984)).
Idaho Plumbers also addressed the imposition of liquidated damages pursuant to contractual agreement. Idaho Plumbers affirmed the trial court’s determination that the liquidated damages provision at issue was void as a penalty. That agreement provided for liquidated damages of 20%, or $9,245.23 in that instance, for a contribution that was paid four days late. Idaho Plumbers, 875 F.2d at 214. Here the Trust Funds’ agreements also provided for liquidated damages in the amount of 20% of the delinquent contribution. Armstrong was assessed $29,199.49 for a series of delinquencies averaging less than 20 days in length. The trial court did not specifically find the trusts’ liquidated damages provisions void as a penalty, rather he declined to award damages because he found that so doing would not effectuate the policies behind ERISA and LMRA. However, the District Judge’s quotation of Bennett suggests that he was concerned that the 20% penalty provision did not constitute a reasonable forecast of just compensation for the harm caused. There is nothing in the record to indicate that the 20% provision in the Trust Funds’ agreements was any more a reasonable forecast of damages than the 20% provision in Idaho Plumbers. Therefore, we hold that as in Idaho Plumbers, the 20% provision is void as a penalty.
As to the Trust Funds’ single assessment at the previous rate of 10%, appellees’ counsel conceded at oral argument that the Idaho Plumbers penalty analysis would recognize no difference between a 10% or 20% rate. Without some indication that the liquidated damages provision is a good faith attempt to set an amount reflective of anticipated damages, we will find the provision void as a penalty. Idaho Plumbers, 875 F.2d at 217 (citing United Order of American Bricklayers and Stone Masons v. Thorlief Larsen & Son, Inc., 519 F.2d 331, 332 (7th Cir.1975)).
2. Interest on Liquidated Damages
Our affirmance of the district court’s denial of liquidated damages resolves the Trust Funds’ claim for interest on the liquidated damages.
3. Attorneys’ Fees
Armstrong cross-appeals on the issue of whether the trial court should have awarded attorneys’ fees to the Trust Funds. The trial court’s Memorandum Decision awarded $4,441.25 in fees on the basis that “[hjaving brought suit pursuant to 29 U.S.C. § 1145 and having prevailed on the issue of interest, the plaintiffs are entitled to recover their reasonable attorneys’ fees and costs of suit under 1132(g)(2)(D).” Memorandum of Decision at 4, Parkhurst v. Armstrong Steel Erectors, CV 86-5590 WDK (C.D.Cal. August 25, 1987).
Armstrong contends that the Trust Funds did not really prevail on the interest claim because, as the memorandum decision notes, “Armstrong has not contested its obligation to pay interest under the trust agreements, and even concedes that it has not paid those sums, in part because it never received an invoice for them.” Id.
Nevertheless, the trial court found “that Parkhurst properly brought this action to recover interest owing on the delinquent contributions and is entitled to recover $671.74 on that basis.” Id.
Armstrong’s Answer sets forth an affirmative defense that “[a]ll sums due from defendant to plaintiffs as contributions under the agreements between the parties were paid in full by defendant before the filing of this action, as plaintiffs well know, and all sums sought by plaintiffs in this action from defendant are for so-called liquidated damages only.” The Trust Funds’ complaint did include a demand for interest, both on the contributions for the time they were delinquent and for interest on the liquidated damages.
Section 1132(g)(2)(D) states that “In any action ... to enforce section 1145[ ] of this title in which a judgment in favor of the plan is awarded, the court shall award the plan reasonable attorney’s fees and costs of the action, to be paid by the defendant....” 29 U.S.C.A. § 1132(g)(2)(D) (West 1985). In the case at bar, apparently Armstrong had conceded the interest issue but the District Judge found that it had not paid the amount prior to the filing of the judgment or the suit.
We review a district court’s award of mandatory attorneys’ fees pursuant to § 1132(g)(2)(D) according to the deferential, clearly erroneous standard. Lads Trucking Co. v. Board of Trustees, 777 F.2d 1371, 1373 (9th Cir.1985). The trial court’s finding that the Trust Funds prevailed on the issue of interest is not clearly erroneous and is supported by the record.
Each side will bear its own costs and fees for this appeal.
AFFIRMED.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29? Answer with a number.
Answer:
|
songer_appfed
|
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 "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.
COMMISSIONER OF INTERNAL REVENUE v. PUPIN'S ESTATE et al.
No. 85.
Circuit Court of Appeals, Second Circuit.
Nov. 20, 1939.
Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Louise Foster, Sp. Assts. to Atty. Gen., for petitioner.
Harry W. Forbes, of New York City, for respondent.
Before L. HAND, AUGUSTUS N. HAND, and PATTERSON, Circuit Judges.
PATTERSON, Circuit Judge.
The question is whether the estate of Michael I. Pupin, deceased, is liable for additional estate tax. The decedent died in 1935, leaving an estate subject to estate tax. During his lifetime he had taken out policies of insurance on his life. Insurance of a value of $51,122.20 was payable to his daughter. Other insurance, $50,000 in amount, was payable to Columbia University. By section 302 of the Revenue Act of 1926, $40,000 of the life insurance was free from estate tax. Section 302 reads:
“The value, of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated. * * *
“(g) To the extent of the amount receivable by the executor as insurance under policies taken out by the decedent upon his own life; and to the extent of the excess over $40,000 of the amount receivable by all other beneficiaries as insurance under policies taken out by the decedent upon his own life.” 26 U.S.C.A. § 411(g).
Section 303 provides for deductions from the gross estate in determining the net estate for purpose of tax:
“For the purpose of the tax the value of the net estate shall be determined—
“(a) In the case of a resident, by deducting from the value of the gross estate. * * *
“(3) The amount of all bequests, legacies, devises, or transfers, to or for the use of * * * any corporation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes * * *. The amount of the deduction under this paragraph for any transfer shall not exceed the value of the transferred property required to be included in the gross estate.” 26 -U.S.C.A. § 412 (d).
In the estate tax return the administratrix included in the gross estate $61,122.20 of the life insurance, being the amount in excess of $40,000, which was obviously correct, and claimed a deduction of $50,000 from the gross estate on account of the insurance in favor of Columbia University. The commissioner gave notice of a deficiency. He held that the $40,000 exclusion under section 302 should be prorated between the policies, $19,778.05 to the insurance payable to Columbia University and $20,221.95 to the insurance for the daughter, and that the amount of' deduction for the transfer to Columbia University under section 303 was $50,000 less the $19,778.05 already excluded from the gross estate, or $30,221.95. This meant an increase in the net taxable estate of $19,778.05 and a corresponding tax deficiency of $2,056.91. The administratrix took the point to the Board of Tax Appeals, which decided in her favor.
The commissioner is right in saying that in effect the administratrix allocated the $40,000 exemption under section 302 to the insurance for the daughter. This is true because section 303 limits a deduction on account of a transfer for educational purposes to the value of the transferred property included in the gross estate. The deduction' here being taken at $50,000, it necessarily means that the entire $40,000 exemption was applied against the insurance for the daughter.
But the question remains whether it was not the intention of Congress in a case like the present, insurance in favor of a kinsman and insurance in favor of a college, that the estate might allocate the $40,-000 exemption under section 302 to the former insurance and subtract the latter insurance from the gross estate under section 303 as a transfer for an educational purpose. Section 302 does not make any allocation of the exemption. The two sections, 302 and 303, are therefore to be interpreted and applied so as to effectuate the purpose of Congress in imposing the tax. See Estate of Sanford v. Commissioner of Internal Revenue, 60 S.Ct. 51, 84 L.Ed.-, decided by the Supreme Court November 6, 1939. We know that it was the purpose to encourage bequests or similar transfers to charities by relieving the estate from tax on the bequeathed or transferred property, quite as fully as though that property had had no existence. Edwards v. Slocum, 264 U.S. 61, 44 S.Ct. 293, 68 L.Ed. 564; United States v. Provident Trust Co., 291 U.S. 272, 54 S.Ct. 389, 78 L.Ed. 793. With the property transferred to Columbia out of the case, the daughter’s insurance would take the full benefit of the $40,000 exemption. On the other hand, the apportionment proposed by the commissioner would make the estate pay a larger tax than if there had been no insurance payable to Columbia, a result never intended by Congress.
The commissioner relies on section 314, 26 U.S.C.A. § 426, to the effect that if part of the gross estate consists of proceeds of life insurance receivable by a beneficiary other than the' executor, the executor may recover from the beneficiary such portion of the total tax as the proceeds of insurance in excess of $40,000 bear to the net estate, and that if there is more than one beneficiary the executor may recover from them in the same ratio. The intent of the section is that beneficiaries under insurance policies shall bear their fair proportion of the tax. It has no application to a case where no part of the total tax is attributable to the life insurance, as where the insurance is in favor of a charity.
The Board’s decision was in accord with McKelvy v. Commissioner, 3 Cir., 82 F.2d 395. We think that the decision was right.
Affirmed.
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_r_bus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
BOKUM RESOURCES CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 79-2140.
United States Court of Appeals, Tenth Circuit.
Submitted May 11, 1981.
Decided July 29, 1981.
Wayne E. Bingham and Douglas G. Voe-gler of Pickering & Bingham, Albuquerque, N. M., for petitioner.
Richard B. Bader and Lynne E. Deitch, Attys. and William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., for respondent.
Before McWILLIAMS and LOGAN, Circuit Judges, and BOHANON, District Judge.
Honorable Luther L. Bohanon, United States District Judge of the Northern District of Oklahoma, sitting by designation.
McWILLIAMS, Circuit Judge.
Bokum Resources Corp. filed a petition to review, and set aside, a decision and order of the National Labor Relations Board which found that Bokum committed unfair labor practices in violation of section 8(a) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1976). Specifically, the NLRB found that Bokum refused to bargain with the International Union of Operating Engineers, Local 953, AFL-CIO, and the Laborers International Union of North America, Local 16, AFL-CIO, which had been certified by the Board as the employees’ bargaining representatives following a representation election. By cross-application the Board seeks enforcement of its order.
Bokum is a mining company incorporated in Delaware and engaged in uranium mining in New Mexico. The bargaining unit here involved is composed of all construction and shaft sinking employees working at Bokum’s mine at Marquez, New Mexico, excluding office clerical employees, guards, watchmen and supervisors.
In a consent election in which thirty-four employees were eligible to vote, seventeen voted for the Union and ten voted against the Union. . Four votes were challenged, and three eligible employees did not vote. Bokum filed timely objections, claiming that there was Union misconduct which adversely affected the election. Thereafter, the Regional Director of the NLRB conducted an administrative investigation of Bokum’s objections in which the parties were allowed to submit evidence. The Regional Director then issued his report, in which he held that Bokum’s objections were without merit, and he recommended that the Union be certified. Bokum filed timely objections to the Regional Director’s report. On review, the Board adopted the Director’s report and certified the Union.
Thereafter, Bokum refused to bargain with the Union, which then filed charges of unfair labor practices. Based on the Union’s charges, the Regional Director issued a complaint. By answer, Bokum admitted that it had refused to bargain with the Union, and again denied the validity of the Board’s certification of the Union. It was in this setting that the General Counsel for the NLRB filed motions to transfer the case to the Board and for summary judgment. The Board ordered thé proceeding transferred, and then ordered Bokum to show cause why summary judgment should not be entered. Bokum, by response, reiterated its previously stated objections to the representation election and requested an evidentiary hearing.
The Board granted summary judgment, noting that all of the issues raised by Bo-kum in the unfair labor practices proceeding had been raised, or could have been raised, in the underlying representation proceeding. The NLRB further found that Bokum, in response to the motion for summary judgment, made no claim that it had newly discovered or previously unavailable evidence, nor did it allege any special circumstances which required a hearing into the fairness of the representation election. Accordingly, Bokum was ordered by the Board to bargain with the Union. The Board’s decision and order appear at 245 N.L.R.B. 84 (1979). It is this order which Bokum seeks to have set aside, and which the Board by cross-application asks to have enforced.
In our view, Bokum, under the circumstances, was not entitled to an evidentiary hearing on its claim of election irregularities, and the unfair labor practice proceeding was ripe for summary judgment. In NLRB v. Moran Oil Producing & Drilling Corp., 432 F.2d 746 (10th Cir. 1970), cert. denied, 401 U.S. 941, 91 S.Ct. 941, 28 L.Ed.2d 221 (1976), appears the following pertinent comment:
The Company argues that summary disposition was improper because, in the unfair labor practice proceedings, it was entitled to an evidentiary hearing on the correctness of the Director’s representation determinations. The same contention has been presented to us in the cases of Meyer Dairy, Inc. v. National Labor Relations Board, 10 Cir., 429 F.2d 697, National Labor Relations Board v. Gold Spot Dairy, Inc., 10 Cir., 432 F.2d 125, and National Labor Relations Board v. Jackson Farmers, Inc., 10 Cir., 432 F.2d 1042 [cert. denied, 401 U.S. 955, 91 S.Ct. 974, 28 L.Ed.2d 238 (1971)]. We have held that under § 3(b) the Board can delegate its unit determination functions to the regional director; that the decisions of the latter, if not set aside by the Board, are entitled to the same weight as Board determination; and that the limited review provided by 29 CFR § 102.67 applied to Board review of any delegated action of a regional director. The Company does not claim that it has any newly discovered or previously unavailable evidence or that it was foreclosed from presenting any substantial and material evidence at the representation proceedings. Under the authorities cited, the matter was ripe for determination on the motion for summary judgment. 432 F.2d at 748.
See also NLRB v. Ethan Allen, Inc., 596 F.2d 936 (10th Cir. 1979), and NLRB v. Whitney Museum of American Art, 636 F.2d 19 (2d Cir. 1980).
Bokum asserts that an election notice which was posted at the Marquez mining operation was faulty. While the notice to which Bokum objects did not contain any incorrect information, it failed to state the polling times and place, and the unions involved. The Company contends that the posting of this incomplete notice caused the entire purpose of the election to be frustrated. It is important to note, however, that a notice that did contain all the correct information was posted about twelve hours prior to the election. The notice at issue is a printed form which is distributed by the NLRB. In addition to details about the election, the form includes general information about employees’ voting rights, including a statement of conduct which is not permitted during a representation campaign.
Further, Bokum made no showing that the election notice about which it complains was posted by the Union or its representatives. Upon the record presented here, one could conclude equally well that the incomplete notice was posted by Bokum’s own representatives. As the Board correctly held, conduct not attributable to the opposing party cannot be a basis for setting aside an election. Bush Hog, Inc. v. NLRB, 420 F.2d 1266, 1269 (5th Cir. 1969). See also NLRB v. Sauk Valley Manufacturing Co., Inc., 486 F.2d 1127, 1131 (9th Cir. 1973).
Bokum also complains that the election should be set aside because campaign literature distributed by the union was misleading. Bokum does not, however, point to any false information. Rather, the Company states that certain important facts were omitted. The NLRB has applied a liberal rule toward such “campaign propaganda,” finding that it has to be seriously misleading to justify setting aside an election. Even if there were a rule requiring complete truthfulness, the campaign literature at issue would meet the standard, since the employer only alleges a “failure to disclose.” Affirmative disclosure has never been required. See Florida Mining & Materials Corp. v. NLRB, 481 F.2d 65, 68 (5th Cir.), rehearing denied, 485 F.2d 687 (5th Cir. 1973), cert. denied, 415 U.S. 990, 94 S.Ct. 1588, 39 L.Ed.2d 886 (1974).
Finally, Bokum asserts the election should be set aside on the ground that the Union violated the rule of NLRB v. Savair Manufacturing Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973), by offering discounted Union memberships to employees supporting the Union. The situation here, however, is clearly distinguishable from that in Savair. In the latter case, the employees were offered waived initiation fees in exchange for signing “recognition slips” indicating Union support. The waiver of fees was available only to those employees signing the slips prior to the election. In contrast, the Board found here that the reduction in fees was available to employees whether they indicated support for or sought to join the Union before or after the election. The situation, therefore, resembles that in NLRB v. Whitney Museum of American Art, 636 F.2d 19 (2d Cir. 1980), in which the Court of Appeals held that a similar fee waiver was not a ground for setting aside an election.
The petition to set aside the Board’s order is denied, and the order of the Board shall .be enforced.
. Bokum is charged with violating 29 U.S.C. § 158(a)(1) (1976), which provides that it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise” of the rights granted by 29 U.S.C. § 157 (1976). Bokum also is charged with violating 29 U.S.C. § 158(a)(5) (1976), which provides that it is an unfair labor practice “to refuse to bargain collectively” with the employees’ representative.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_appel1_1_4
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant.
NEW YORK LIFE INS. CO. v. GAY.
Circuit Court of Appeals, Sixth Circuit.
December 13, 1929.
No. 5242.
Wm. Marshall Bullitt, of Louisville, Ky. (John E. Tarrant and Bruce & Bullitt, all of Louisville, Ky., on the brief), for appellant.
James M. Benton, of Winchester, Ky. (Benton & Davis, of Winchester, Ky., on the brief), for appellee.
Before DENISON and HICKENLOOPER, Circuit Judges, and HAHN, District Judge.
As early as 1766 Lord Mansfield, in one of the cited cases, Carter v. Boehm, 3 Burrow’s Reports, Court of King’s Bench, 1909, said:
“Insurance is a contract upon speculation.
“The special facts, upon which the contingent chance is to be computed, lie most commonly in the knowledge of the insured only: the underwriter trusts to his representation, and proceeds upon confidence that he does not keep back any circumstance in his knowledge, to mislead the under-writer into a belief that the circumstance does not exist, and to induce him to estimate the risque, as if it did not exist.
“The keeping back such circumstance is a fraud, and therefore the policy is void. Although the suppression should happen through mistake, without any fraudulent intention; yet still the under-writer is deceived, and the policy is void; because the risque run is really different from the risque understood and intended to be run, at the time of the agreement.
“The policy would equally be void, against the under-writer, if he concealed; as, if he insured a ship on her voyage, which he privately knew to be arrived: and an action would lie to recover the premium.”
HAHN, District Judge.
The plaintiff below brought this action in the circuit court for Clark county, Ky., as beneficiary of a policy of life insurance by which the defendant had insured the life of his testator, David S. Gay. The ease was removed for diversity of citizenship to the United States District Court for the Eastern District of Kentucky. The application for said insurance policy was dated March 13, 1923, and a policy in the «mount of $20,000 was dated March 20, 1923, •and was delivered to the insured on the 29th .day of April, 1923.
The insurance company defended upon •the grounds, inter alia, that the plaintiff’s testator on the 13th day of March, 1923, had made false and fraudulent answers in his application for said insurance, in that he stated in said application that he had never consulted a physician for, and that he had never suffered from, any ailment or disease of the stomach; that he never consulted a physician for any ailment or disease not included in the application, except that he had been treated •in the five years before said application by Doctor B. J. Johnson; and that said treatment was for a cold, from which he completely recovered in two weeks. The insurance ■company claimed that these answers were false and fraudulent because said David S. ‘Gay had in fact consulted said Dr. B. J. Johnson, Dr. W. S. Wyatt and Dr. Kennon Dun-ham for a serious ailment of the stomach, which had developed or which afterwards developed as carcinoma of the stomach. The .answer further alleged that on or about the 19th day of March, 1923, which was six days after the date of the application, said David •3. Gay went to Kelly’s Sanitarium, in Baltimore, Md., and there consulted Dr. Curtis F. Bumam; that Gay at that time was suffering from carcinoma of the stomach and knew that he was suffering from that disease; and that he submitted to radium treatment for a period of three weeks.
This case was tried twice in the District Court. Upon the first trial, because of the fraud of the insured, the court directed a verdict for the defendant. Upon a motion for a new trial, the court reconsidered its finding and conclusions, granted a new trial, and, upon said trial, directed a verdict for the plaintiff. The decision of the court was based upon two statutes of the Commonwealth ■ of Kentucky, as construed by the Court of Appeals of that commonwealth. These statutes (Ky. St.) are, in part, as follows: “Section 656. Nor shall any sueh company or any «gent thereof make any contract of insurance or agreement as to such contract, other than is plainly expressed in the policy issued thereon.”
And section 679 is, in part, as follows: “All policies or certificates hereafter issued to persons within the commonwealth of Kentucky by corporations transacting business therein under this law, which policies or certificates contain any reference to the application of the insured, or the by-laws, or the rules of the corporation, either as forming part of the policy or contract' between the parties thereto, or as having any bearing on said contract, shall have sueh application, bylaws and rules, or the parts thereof relied upon as forming part of the policy or contract between the parties thereto, or as having any bearing on said contract, attached to the policy or certificate, or printed on the face or reverse side thereof, and unless either so attached and accompanying’ the policy or printed on the face or reverse side thereof, shall not be received as evidence in any action for the recovery of benefits provided by the policy or certificate, and shall not be considered a part of the policy, or of the contract between the parties. The policy or certificate, and the rules and regulations, shall be printed, and no portion thereof shall be in type smaller than brevier.”
The District Court came to the conclusion that, whether either or both statutes applied to the case, the court was precluded by at least seven decisions of the Kentucky Court of Appeals construing the statutes from permitting a defense of fraud arising out of material misrepresentations in the application for life insurance unless a sufficient copy of such application accompanied the policy; that under the holding in the case of Fidelity Mutual Insurance Co. v. Preuser (1922) 195 Ky. 271, 242 S. W. 608, the application attached to the policy in suit was insufficient because it was a photostatic copy unduly reduced in size, and that neither the application nor parol proof of the questions and answers of the application (Southern States Mutual Life Insurance Co. v. Herlihy [1910] 138 Ky. 359, 128 S. W. 91) was admissible ■ in evidence. The court considered all of the evidence of fraud and nondisclosure as being reflected in the alleged false answers in the application, and did not give independent consideration to evidence of fraud alleged to have occurred after the date of the application and prior to the delivery of the policy, or between March 13,1923, and the 29th day of April, 1923.
The insurance company here urges that the court below erred in the application of the statutes above quoted and the decisions of the Court of Appeals of Kentucky, and that the court further erred in not giving full ' and independent consideration to the alleged fraud occurring after the date of the application. It is urged that the court did not give that consideration to the facts which is re^ quired by the decision of the Supreme Court of the United States in Stipcich v. Metropolitan Life Insurance Co., 277 U. S. 311, 48 S. Ct. 512, 514, 72 L. Ed. 895. The latter case was decided after this case had been disposed of in the court below.
The Stipeich Case did not deal with the effect of alleged false answers in an application for insurance, but dealt solely with the effect of nondisclosure of material facts occurring between the date of the insured’s application and the delivery of his policy. The facts were that after applying for insurance, but before the delivery of the policy to him, the insured suffered a recurrence of a duodenal ulcer which later caused his death, and that he failed to reveal this information to the company. The court considered the effect of these facts independently .of the alleged fraud in the answers of the insured’s application, and held that the insurance company was entitled to disclosure of them.
The reasoning of the Stipeich Case as applied to this case is, briefly, to the effect that insurance contraéis are traditionally contracts ubérrimas fidei; that a failure by the insured to disclose conditions affecting the risk, of which he is aware, makes the contract voidable at the insurer’s option; that, while the modem practice of requiring the applicant for life insurance to answer questions prepared by the insurer has relaxed the rule to some extent, the reason for the rule still obtains with added force as to changés materially affecting the risk which come to the knowledge of the insured after the application and before the delivery of the policy; that if, while the company deliberates, the insured discovers facts which make portion's of his application no longer trae, then the most elemental spirit of fair dealing requires that !he make full disclosure; and that, in a suit upon a policy issued under circumstances when such disclosure was not had, the insurance company has a valid defense based upon such nondisclosure.
The evidence in this record supports the inference that while Gay of course knew that he had consulted three physicians for an ailment of the stomach prior to the date of his application, and that his answers in his application in that respect were untrue, he did not at the time he signed his application know that he was afflieted with cancer of the stomach. His physicians, though suspicious of cancer of the stomach, did not advise him of such suspicions. His report to Dr. Curtis F. Bumam at Baltimore was that it had been reported to him that his stomach was normal in February of 1923, and there is no evidence in the record that that was not his belief at the time he signed his application on March 13, 1923. Three days thereafter, however, upon the advice of one of the physicians whom he had consulted prior to the date of his application, he consulted Dr. Curtis F. Bumam at the Howard A. Kelly Hospital in Baltimore, who, after an examination of Gay, recommended that he submit to a surgical operation for the removal of the pyloric end of his stomach, or at least that he submit to radium treatment for that area of his stomach. Gay did submit to such radium treatment for a period of three weeks. Thus it appears that between the date of his application and the date of the delivery of the policy in suit his symptoms became so definite that a physician, whom he must have regarded highly, diagnosed his affliction as cancer of the stomach and advised the above extreme and radical treatment. Doetor Bumam was uncertain as to whether he had advised Gay that he was afflicted with cancer of the stomach. •
If we may regard Gay’s belief at the time he signed his application to be colored with optimism as to his condition, the more serious fraud upon the insurance company was perpetrated after he signed his application in failing to disclose to the insurance company that he had definitely learned that the condition of his stomach was such that he had been advised to submit to a surgical operation and to radium treatment which, as a matter of common knowledge, in stomach treatment, points only toward a diagnosis of cancer. He knew that the insurance company was proceeding upon the assumption that he had not consulted a physician for any stomach ailment in the five previous years, and to take the tendered policy without disclosing his discoveries after he signed the application was to perpetrate a plain fraud upon the insurance company. Clearly the insurance company did not receive the disclosures to which it was entitled under the rule of the Stipeich Case.
Neither the statutes of Kentucky above quoted nor the decisions of the Court of Appeals of that commonwealth in any way modify the rule of the Stipeich Case. They deal solely with the right of an insurance company to defend upon the ground of fraud which is reflected in the misrepresentations of an application. So far as nondisclosure of facts transpiring after the signing of an application is concerned, the statutes in question are not broader in their scope and effect than the statute of the state of Oregon which was involved in the Stipeich Case, and which required that the entire contract between the insured and the insurance company be set forth in the application and the policy. In Fidelity Mutual Insurance Co. v. Preuser (1922) 195 Ky. 271, 242 S. W. 608, 609, the court said:
“It is well settled that an application must be attached to or recited in the policy otherwise it cannot be received in evidence. Manhattan Life Ins. Co. v. Myers, 109 Ky. 372, 59 S. W. 30, 22 Ky. Law Rep. 875; Southern States Mutual Life Ins. Co. v. Herlihy, 138 Ky. 359, 128 S. W. 91; American Patriots v. Cavanaugh, 154 Ky. 653, 157 S. W. 1099. And, while this had been more generally held under section 679 than under section 656 of Kentucky Statutes, the reason for the rule is plainly included in the latter section, which requires that no contract of insurance shall be made other than is plainly expressed in the policy issued.”
It was urged in the Stipeich Case that, in attempting to rely upon nondisclosure of facts occurring after the date of the application, .the insurance company was attempting to add another term to the contract, contrary to the terms of the statute. The court said: “The obligation was not one stipulated for by the parties, but is one imposed by law as a result of the relationship assumed by them and because of the peculiar character of the insurance contract. The necessity for complying with it is not dispensed with by the failure of the insurer to stipulate in the policy for such disclosure.”
We find no decisions of the Kentucky Court of Appeals holding that, in enacting the quoted statutes, the Legislature of Kentucky attempted in any wise to modify the obligation of disclosure imposed by law.
It follows, we think, that the insurance company, without offering in evidence the application or oral proof of the questions and answers therein contained (Southern States Mutual Life Insurance Co. v. Herlihy, 138 Ky. 359, 128 S. W. 91), had a right to prove, as it did, by the insured’s physicians, his actual condition of health prior to, and at the time of, the signing of the application, his knowledge and nondisclosure thereof, for the bearing and relation which such condition of health might have upon and to the matters transpiring and the discoveries had after the signing of the application and which” were not disclosed to the insurance company.
On behalf of the insured it is urged, however, that under the doctrine of the Stipeich Case the insurance company by its contract might assume the risk of changes in the health of the insured occurring after the date of the application and before the date of the issuance of the policy, and that, under such circumstances, failure of the insured to disclose any later known changes will not affect the policy. In that connection the insured relies upon that part of the application in this case which is as follows: “It is mutually agreed as follows: 1. That the insurance (hereby applied for shall not take effect unless and until the policy is delivered to and received by the applicant and the first premium thereon paid in full during his lifetime, and then only if the applicant has not consulted or been treated by any physician since his medical examination, and the contract shall thereupon, unless provided for otherwise above, relate back to and take effect as of the date of this application; provided, however, that if the applicant, at the time' of making this application, pays the agent in cash the full amount of the first premium for the insurance applied for in Questions 2 and 3 and so declares in this application and receives from the agent a receipt therefor on the receipt form which is attached hereto, and if the Company, after medical examination and investigation, shall be satisfied that the applicant was, at the time of making this application, insurable and entitled under the Company’s rules and standards to the insurance, on the plan and for the amount applied for in Questions 2 and 3, at the Company’s published premium rate corresponding’ to the applicant’s age, then said insurance shall take effect and be in force under and subject to the provisions of the policy applied for from and after the time this application is made, whether the policy he delivered to and received by the applicant or not.”
We may assume that the quoted provisions in some instances are effective for the claimed purpose, and we need not consider the incongruous position of the insured’s representative in now relying upon a provision which, at his request, was ruled out of the case as being inadmissible (this was the necessary effeet of granting plaintiff’s motion for a directed verdict), and through which ruling he escaped the legal effect of the fraudulent answers in this very application. We think the provision of the application relied upon can he ,of no avail as against established fraud on the part of the insured. The application contains no express provision waiving the insured’s fraud, and it would he against reason to hold that the insurance company intended to waive fraud of the character involved in this case unless expressly so provided. In the absence of an express provision the implication would be that there was no intention to waive the personal fraud of the insured. Wheelton v. Hardisty, 8 El. & Bl. 232-283; Massachusetts Beneficial Life Association v. Robinson, 104 Ga. 256, 30 S. E. 918, 42 L. R. A. 261. And an express provision waiving such fraud would he contrary to public policy and would be invalid and ineffectual.
It is well settled that the suppression of a material fact which a party is bound in good faith to disclose is equivalent to a false representation. Tyler v. Savage, 143 U. S. 79, 12 S. Ct. 340, 36 L. Ed. 82. And fraud vitiates the most solemn contracts and documents,- and even judgments. United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93; Minneapolis, St. Paul, etc., R. Co. v. Rock, 279 U. S. 410, 49 S. Ct. 363, 73 L. Ed. 766.
Accordingly, in the better reasoned eases it has been held that an express stipulation in a contract that a false or fraudulent representation, by which one party has induced the other to enter into it, shall not affect its validity, is itself invalid and cannot operate either by estoppel or otherwise. Hofflin v. Moss (C. C. A. 8) 67 F. 440; Strand v. Griffith (C. C. A. 8) 97 F. 854, 858; 13 C. J. 420, § 350; 2 Williston on Contracts, § 811; Pearson v. Dublin, [1907] A. C. 351; Reagan v. Union Mutual Life Insurance Co., 189 Mass. 555, 76 N. E. 217, 2 L. R. A. (N. S.) 821, 109 Am. St. Rep. 659, 4 Ann. Cas. 362; Bridger v. Goldsmith, 143 N. Y. 424, 428, 38 N. E. 458. Compare Kansas Mutual Life Insurance Co. v. Whitehead, 123 Ky. 21, 93 S. W. 609, 13 Ann. Cas. 301.
Three of the cases cited in connection with that part of the Stipcich Case (pages 315 and 316 of 277 U. S., 48 S. Ct. 512, 72 L. Ed. 895) .relied upon by counsel, are not to the contrary. They recognize that under certain contract arrangements insurance becomes effective as of the date of the application, and that the insurance company assumes the risk of changes of health intervening the application and the delivery of the policy; hut Ben. L. Mutual Insurance Co. v. Higginbotham, 95 U. S. 380, 383, 24 L. Ed. 499, involved an application for reinstatement of a life insurance policy that had lapsed for nonpayment of a premium. There was not in that ease, as there was-in this ease, fraudulent nondisclosure at the time of the making of the application. Grier v. Insurance Co., 132 N. C. 542, 545, 44 S. E. 28, states the rule “in the absence always of fraud”; and Gardner v. Insurance Co., 163 N. C. 367, 373, 79 S. E. 806, 808, 48 L. R. A. (N. S.) 714, Ann. Cas. 1915B, 652, announces the rule, “in the absence of fraud or other sufficient equitable element, as they affect the validity of the contract of insurance.” The fourth cited case, New York Life Insurance Co. v. Moats, 207 F. 481 (C. C. A. 9), strongly relied'upon by counsel, sustains their contention, but it relieved the insured from disclosure of an intervening change of health on the ground that there could be no obligation of disclosure and consequent .fraud unless there was an express provision of the insurance contract requiring disclosure. This is no longer the law, for the Stipcich Case holds in the quotation above (page 316 of 277 U. S., 48 S. Ct. 512, 72 L. Ed. 895) that such an obligation of disclosure is one imposed by law and a stipulation in the policy requiring it is unnecessary; compare Goldstein v. New York Life Insurance Co., 176 App. Div. 813, 162 N. Y. S. 1088.
There is ample evidence in the record within the limitations already suggested (Southern States Mutual Life Insurance Co. v. Herlihy, supra) which warranted only the finding that the contract of insurance here involved had its very inception in fraud which continued until the delivery of the .policy, thus vitiating every provision of the contract.
It is unnecessary to consider other assignments of error. Upon the undisputed evidence found in this record and the only possible inferences therefrom the verdict should have been directed for the defendant. The judgment is reversed, and the case remanded for further proceedings not inconsistent with this opinion.
Question: This question concerns the first listed appellant. 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.
The PENNSYLVANIA RAILROAD COMPANY, Third-Party Plaintiff, Appellee, v. ERIE AVENUE WAREHOUSE CO., Third-Party Defendant, Appellant.
No. 13618.
United States Court of Appeals Third Circuit.
Argued Oct. 20, 1961.
Decided May 2, 1962.
Joseph J. Murphy, Philadelphia, Pa. '(George D. Sheehan, Murphy & Sheehan, Philadelphia, Pa., on the brief), for appellant.
Raymond W. Midgett, Jr., Philadelphia, Pa. (Barnes, Dechert, Price, Myers & Rhoads, Philadelphia, Pa., on the brief), for appellee.
Before KALODNER, HASTIE and GANEY, Circuit Judges.
HASTIE, Circuit Judge.
This litigation began as a wrongful death action under the Federal Employers’ Liability Act by the administratrix of the estate of Edward Day against the Pennsylvania Railroad. While working for the defendant railroad as a brakeman, Day had been crushed to death between a moving train and a wall on the premises of Erie Avenue Warehouse Co., where the railroad serviced a siding. A third-party claim, filed by the railroad, a citizen of Pennsylvania, against Erie, also a citizen of Pennsylvania, under Rule 14, Federal Rules of Civil Procedure, 28 U.S.C.A., broadened the suit to include the additional claim that, should the railroad be found legally responsible for Day’s death, the amount of any recovery should be recouped, in whole or in part, from Erie under a contract of indemnity. The railroad paid what all parties now recognize as a reasonable sum in settlement of the Day claim and that action was then dismissed. The subsequent trial of the third-party claim resulted in the railroad’s recovery from Erie of the full amount of the Day settlement.
The original claim was within federal jurisdiction because it arose under a federal statute, the Federal Employers’ Liability Act. But the third-party claim neither arose under a federal statute nor was asserted between citizens of different states. Independently considered, it was not within federal jurisdiction. However the court below ruled that the third-party claim was so “ancillary” to the original proceeding that no jurisdictional basis was required to support it, beyond the federal question jurisdiction that existed with reference to the principal claim. The correctness of that ruling is the first question on this appeal.
Analytically, an “ancillary” claim of the type we now are considering arises solely because of a principal claim and asserts some right pertaining to the judgment sought on the principal claim. More particularly, both principal and “ancillary” claims arise out of the same injury and the “ancillary” claim seeks either to make the judgment effective or to reallocate the liability. In effect, the supplemental proceeding serves to accomplish full justice with reference to any award made on the principal claim. In the present case, the third-party claim serves to settle a question of liability over as between a principal defendant and a third party without subjecting either to prejudice that might result if the matter should be left to subsequent litigation in a separate action.
The Supreme Court has long held that the constitutional bounds of federal jurisdiction are not exceeded by broadening an action, that is properly in a federal court, to include various related non-federal claims that are no more intimately connected with the principal claim than is the obviously dependent and supplementary third-party claim here. Moore v. New York Cotton Exchange, 1926, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750; Dewey v. West Fairmount Gas Coal Co,, 1887, 123 U.S. 329, 8 S.Ct. 148, 31 L.Ed. 179; Stewart v. Dunham, 1885, 115 U.S. 61, 5 S.Ct. 1163, 29 L.Ed. 329. It follows that the entertaining of the present ancillary claim was a permissible exercise of federal jurisdiction.
However, there is the additional question whether the joinder of non-federal claims over against third parties under Rule 14 violates the requirement of Rule 82, Federal Rules of Civil Procedure, that no Rule shall be construed to extend or limit the statutory jurisdiction of the federal courts. We ruled against such a contention in Sheppard v. Atlantic States Gas Co., 3 Cir. 1948, 167 F.2d 841. Such square holdings as there are in other circuits decide that the addition of claims like the present one does not enlarge federal jurisdiction. Dery v. Wyer, 2d Cir. 1959, 265 F.2d 804; United States v. Acord, 10th Cir. 1954, 209 F.2d 709; Waylander-Peterson Co. v. Great Northern Ry., 8th Cir. 1953, 201 F.2d 408, 37 A.L.R.2d 1399. This conclu sion may be justified by demonstrating that analogous or no more closely related non-federal claims were litigated as controversies incidental to federal suits without independent jurisdictional bases before the adoption of the present Rules.
It has long been familiar federal practice to entertain an “ancillary” claim without independent jurisdictional basis, if that claim seeks either to make a principal judgment effective or to make some lawfully required reallocation of the burden imposed by the principal recovery. Such a supplemental proceeding may serve to effectuate a principal judgment by restraining a third person from interfering with its operation. Supreme Tribe of Ben-Hur v. Cauble, 1921, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673. It may achieve full justice by bringing into a suit a third party who should be required to pay the judgment on a claim because of a transfer of property to him in fraud of creditors. Dewey v. West Fairmount Gas Coal Co., supra.
Again, it was familiar practice before the adoption of the present Rules to permit a person whose interest might be affected by the outcome of a diversity case to intervene, regardless of the interven- or’s citizenship. Phelps v. Oaks, 1886, 117 U.S. 236, 6 S.Ct. 714, 29 L.Ed. 888 (landlord intervening in suit against tenant); Stewart v. Dunham, supra (additional creditors intervening to share benefits of a creditors’ bill). Such intervenors are no more seriously affected by outcome of the principal litigation than is a prospective indemnitor of the defendant. In principle, therefore, an indemnitor’s voluntary intervention would be no enlargement of the jurisdiction exercised in the above cited eases. To permit the principal defendant now under Rule 14 to compel his indemnitor to become a party is merely to adopt a new procedure that gives the litigation no broader scope than it could formerly have been given through intervention. We are satisfied no violation of Rule 82 is involved in this case.
The question remains whether the settlement of the principal claim and its consequent formal dismissal with prejudice terminated the power of the court to decide the “ancillary” third-party claim. The Supreme Court has from time to time considered the effect of the termination of principal claims upon judicial power to adjudicate pending ancillary claims. When the dismissal of the principal claim has been because the court lacked power from the outset to entertain it, dismissal of the ancillary claim has also been required. Kelleam v. Maryland Casualty Co., 1941, 312 U.S. 377, 61 S.Ct. 595, 85 L.Ed. 899; A. Leschen & Sons Rope Co. v. Broderick & Bascom Rope Co., 1906, 201 U.S. 166, 26 S.Ct. 425, 50 L.Ed. 710; cf. St. Louis I. M. & So. Ry. v. McKnight, 1917, 244 U.S. 368, 37 S.Ct. 611, 61 L.Ed. 1200. But when the principal claim has been defeated on its merits, power to adjudicate pending ancillary matters has been held to survive. Hurn v. Oursler, 1933, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148; Moore v. New York Cotton Exchange, 1926, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750; cf. Hardenbergh v. Ray, 1894, 151 U.S. 112, 14 S.Ct. 305, 38 L.Ed. 93; Mollan v. Torrance, 1824, 9 Wheat. 537, 22 U.S. 537, 6 L.Ed. 154. It is logical and eminently fair that the present case, where settlement of the principal claim is not substantially different from recovery upon it in creating a need to adjudicate forthwith the ancillary issue of recovery over, be treated like a disposition on the merits. Dery v. Wyer, supra.
This is not to decide that a trial judge would lack discretionary power to dismiss an ancillary claim for policy considerations growing out of the disposition made of the principal claim. But no such adverse policy consideration is urged in this case. Moreover, in refusing to dismiss the ancillary claim the court below pointed out that interrogatories had been filed and answered and other pre-trial steps had been taken in connection with the third-party claim before its dismissal was moved. In all the circumstances, it was reasonable and proper to retain jurisdiction of the third-party claim.
We next state the facts essential to the disposition of this appeal on its merits. The accident in controversy occurred during the execution of a switching operation by the railroad over an industrial siding located on property leased and occupied by Erie. The decedent, Day, was working as a railroad brakeman when his head became wedged and was crushed between the side of a moving boxcar and a concrete retaining wall, a permanent structure close to the sidetrack. The accident occurred in an area where a funnel-like narrowing of the space between the sidetrack and the adjacent retaining wall rather abruptly reduced the lateral clearance of a moving boxcar from 31 inches to a mere 7 inches in approximately 15 feet. This means that the lateral clearance between the track itself and the wall was reduced to less than 3 feet at this point. The trial court found, with ample justification in the evidence, that Day’s death resulted from an inadequate and unsafe clearance along side the track. The industrial siding was an old one, and the close clearance in question had existed in 1955, when the railroad contracted to provide Erie with service, and remained unchanged until the fatal accident occurred in 1957.
The trial court ruled and it is not disputed now, that under the Federal Employers’ Liability Act the railroad breached its duty to provide its employee Day with a safe place to perform his duties as a brakeman. Accordingly, the railroad properly paid reasonable damages for Day’s death in settlement of the principal claim. The matter in dispute is Erie’s liability over. This depends upon the legal interpretation and effect of certain indemnity provisions of the agreement between Erie and the railroad under which the siding was used. The trial court, sitting without a jury, awarded the railroad full indemnity, and Erie has appealed.
The agreement in question was drafted by the railroad and signed by both parties on July 28, 1955. The text of paragraphs 7, 8 and 9 of the agreement is set out in the margin. It will be observed that paragraph 7 explicitly requires Erie to “maintain on its property a clear and safe space above and on each side of the side track sufficient to insure the safety of employees and equipment of the Railroad Company * * * [and to] indemnify and save harmless the Railroad Company from loss, damage and expense for failure so to do.” A similar but more general provision in paragraph 9 requires that the Industry shall “indemnify and hold harmless the Railroad Company for loss, damage and injury of any nature resulting from operation by the Railroad Company over the tracks of the Industry when such loss, damage or injury is due to any unsafe condition of the premises of the Industry.”
We need not decide whether these two provisions are partially overlapping. It is sufficient for present purposes that they seem to provide full indemnity to the railroad for harm it may suffer as a result of unsafe conditions, and particularly close clearances, that Erie shall have permitted to exist on its property.
It must be considered, however, whether the circumstances of this accident make these full indemnity provisions inoperative and prevent the imposition of any greater responsibility upon Erie than the requirement of paragraph 9 that “if any claim or liability, other than from fire caused by locomotives as aforesaid, shall arise from the joint or concurring negligence of both parties hereto, it shall be borne by them equally.” This provision for equal sharing of the burden of joint or concurring negligence cannot reasonably be construed to mean that full indemnity shall be denied whenever the railroad has been sufficiently at fault to be legally liable for the injury of a third person since occasion for indemnification in connection with an injury to a third person normally arises only when some fault is chargeable to the indemnitee. A major purpose of the full indemnity provisions of paragraphs 7 and 9 must have been to shift ultimate responsibility to Erie in some situations where the law makes the railroad responsible to a third person for a wrongful injury. Baltimore & Ohio R.R. v. Alpha Portland Cement Co., 3d Cir. 1955, 218 F.2d 207; Booth-Kelly Lumber Co. v. Southern Pac. Co., 9th Cir. 1950, 183 F.2d 902, 20 A.L.R.2d 695. The agreement to share liability equally, as stated in paragraph 9, becomes operative only if, in relation to a third person the parties are joint tortfeasors and the circumstances of the given case make the undertaking to pay full indemnity inapplicable.
Full indemnity may be barred by the fault of the party claiming it. Seeking to establish that this is such a case Erie has invoked the doctrine of “acquiescence”, a widely recognized defense in this area. Perhaps the most frequently quoted general statement of this doctrine appears in Section 95 of the Restatement of the Law of Restitution:
“Where a person has become liable with another for harm caused to a third person because of his negligent failure to make safe a dangerous condition of land or chattels, which was created by the misconduct of the other or which, as between the two, it was the other’s duty to make safe, he is entitled to restitution from the other for expenditures properly made in the discharge of such liability, unless after discovery of the danger, he acquiesced in the continuation of the condition.”
This doctrine has been applied most frequently where the right to indemnity has been created by the common law of restitution apart from any contract to indemnify. More than sixty years ago, in sustaining a claim to indemnity, the Supreme Court of Pennsylvania recognized this defense to the extent of pointing out that on the facts of the case at hand the indemnitee had not “in any way co-operated with the defendant [indemnitor] in his neglect to perform the duty which, as between * * * [these parties] he assumed to discharge.” Brookville Borough v. Arthurs, 1893, 152 Pa. 334, 340, 25 A. 551, 556. Recently, in Baltimore & Ohio R. R. v. Alpha Portland Cement Co., supra, this court, faced with a problem of indemnity claimed under a railroad siding agreement, quoted and used Section 95 of the Restatement of Restitution as an essentially correct statement of Pennsylvania law in the light of which a Pennsylvania contract should be construed. Still more recently, in Kennedy v. Pennsylvania R. R., 1960, 282 F.2d 705, another suit for indemnity, we found it appropriate to remand the controversy to the district court for a new trial to determine whether there was a contractual obligation to indemnify and whether, on the facts, the claim of the railroad against the landowner for full indemnity was barred by acquiescence as that concept is set out in Section 95 of the Restatement of Restitution. This was a square holding that the doctrine of acquiescence limits the recovery of contractual indemnity in Pennsylvania.
Although the Supreme Court of Pennsylvania has not considered this question, our view of Pennsylvania law is supported by the fact that the Superior Court of that state has quoted section 95 with approval. See Georges v. Reading Co., 1948, 162 Pa.Super. 475, 478, 58 A.2d 191, 192. Moreover, the Court of Common Pleas of Allegheny County has applied section 95 as a correct statement of controlling law in Deutsch v. P. C. & Y. Ry., 1956, 7 Pa.Dist. & Co.R.2d 505.
It remains to consider what in general constitutes indemnity-defeating acquiescence by the indemnitee in the indemnitor’s wrong, and whether the present record establishes such acquiescence. Basically, we think the concept covers comprehensively a variety of situations in which courts think that a party should be denied indemnity because his own conduct has been so blameworthy and has so contributed to the harm in question that full restitution is inequitable or cannot properly be viewed as within the intended coverage of an agreement to indemnify.
One hallmark of such acquiescence is long continued awareness of a dangerous situation by the indemnitee without either taking any corrective measure or calling upon the indemnitor to do so. E. g., Bedal v. Hallack & Howard Lumber Co., 9th Cir. 1955, 226 F.2d 526; Owensboro City Ry. Co. v. Louisville H. & St. L. Ry., 1915, 165 Ky. 683, 178 S.W. 1043; Deutsch v. P. C. & Y. Ry., supra. In the present case the railroad had used the siding despite the close clearance here involved before the present siding agreement was executed. It continued to do so under this agreement for two years before the present accident occurred. It had in its possession a chart showing the relation of the track to adjacent structures. The record is clear that the railroad made periodic inspections of the sidetrack. It is equally clear that the railroad’s operating employees had complained to their superior of close clearances of this siding. Indeed, answering an interrogatory in this case the railroad cited a yardmaster’s report that “verbal complaints have been received from time to time from train and engine service employees during the past couple years, * * * their comments being to the general effect that it is a mean and dangerous place to drill cars”. The court below minimized the railroad’s awareness of the danger, stating that the particular spot where this accident occurred had never been mentioned as specially dangerous. But since the entire siding covered no vast area and clearance was reduced so greatly and so sharply at the point of the accident, normal use of the siding, periodic routine inspections and appropriate investigations of the complaints of employees would necessarily have focused the attention of a prudent operator upon the hazard which caused this accident. We think the conclusion is required by the present record that the railroad had been adequately alerted to the dangerous condition which caused this accident long before the mishap occurred. Yet, it is not disputed that the railroad neither took any corrective action itself nor called upon Erie to do so.
The conduct of the railroad is made all the more blameworthy by the fact that, beyond awareness that any switching operation in this area was hazardous, it had received a conductor’s report warning that the hazards on this siding were such that cars should be moved in daylight. Despite this warning, it multiplied the risk of injury on the occasion of this accident by conducting switching at night and by assigning to this hazardous task employees, including the deceased, who had never operated on this siding before. In these circumstances, we think the evidence compels the conclusion that the conduct of the railroad with reference to a special risk to which it had been alerted was so blameworthy that acquiescence must be deemed to bar full indemnity.
We are all the more confident of this conclusion because, apart from the formulated doctrine of acquiescence, the Pennsylvania cases repeatedly express the reluctance of the courts of that state to read indemnity contracts as intended to protect the indemnitee from loss attributable to his own blameworthy conduct. E. g., Pittsburgh Steel Co. v. Patterson-Emerson-Comstock, Inc., 1961, 404 Pa. 53, 171 A.2d 185; Perry v. Payne, 1907, 217 Pa. 252, 66 A. 553, 11 L.R.A., N.S., 1173. We think the fact that the railroad drafted the present contract would increase the reluctance in the present case.
Although the fault of the railroad was serious enough and sufficiently distinct from Erie’s fault to preclude the railroad from recovering full indemnity from Erie, the combination of distinct blameworthy acts and omissions of the two parties brought the case within the provision of paragraph 9 of the siding agreement that the parties shall bear equally liability arising from their joint or concurring negligence. Erie did not discharge its assumed obligation to maintain safe clearances. The railroad, aware of the danger, operated in a way that magnified it.
Only brief mention need be made of a minor point. Erie has objected to the award of interest on the railroad’s claim. The objection is not well taken. The limited contribution required in this opinion is a normal contractual recovery upon which interest may be awarded from the time that Erie was advised that the railroad had settled a liability which it had agreed to share.
The judgment will be vacated and the cause remanded for the entry of a new judgment consistent with this opinion.
. If a prospective indemnitor cannot enter the litigation until a separate suit is brought against Mm, the judgment theretofore rendered in the original suit may-narrow the defenses available to him. Cf. M. Shapiro & Son v. Warwick, 1959, 189 Pa.Super. 445, 150 A.2d 386. On the other hand, if for any reason the first suit does not foreclose relitigation of any issue it decides, in subsequent litigation between indemnitor and indemnitee a reexamination of the nature or validity of the original claim may prejudice the indemnitee. See Orth v. Consumers’ Gas Co., 1924, 280 Pa. 118, 122, 124 A. 296, 297.
. “Clearances.
“7. The Industry shall at all times hereafter establish and maintain on its property a clear and safe space above and on each side of the side track sufficient to insure the safety of employees and equipment of the Railroad Company, and the Industry shall indemnify and save harmless the Railroad Company from loss, damage and expense for failure so to do.
“The Industry shall observe and comply with all rules and regulations of the Railroad Company governing the handling of inflammable liquids, including loading and unloading of tank ears, the location of racks and storage tanks, and protection of oil sidings from danger due to stray electric currents.”
“Fire.
“8. It is understood that the movement of railway locomotives involves some risk of fire, and the Industry assumes all responsibility for and agrees to indemnify the Railroad Company against loss or damage to property of the Industry or to property upon its premises, regardless of Railroad Company negligence, arising from fire caused by locomotives operated by the Railroad Company on the side track, or in its vicinity, for the purpose of serving the Industry, except to the premises of the Railroad Company and to rolling stock belonging to the Railroad Company or to others, and to shipments in the course of transportation.”
“Liability Other Than Fire.
“9. The Industry also agrees to indemnify and hold harmless the Railroad Company for loss, damage or injury from any act or omission of the Industry, its employees or agents, to the person or property of the parties hereto and their employees, and to the person or property of any other person or corporation, while on or about the side track. If any claim or liability, other than from fire caused by locomotives as aforesaid, shall arise from the joint or concurring negligence of both parties hereto it shall be borne by them equally. The Industry also agrees to indemnify and hold harmless the Railroad Company for loss, damage or injury of any nature resulting from operation by the Railroad Company over the tracks of the Industry when such loss, damage or injury is due to any unsafe condition of the premises of the Industry.”
. The court below took the position, incorrectly we think, that this was hearsay and not competent evidence. Actually it was the fact that complaint had been made, not the correctness of the complaint, which should have been considered.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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sc_casedisposition
|
G
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, et al. v. MASSACHUSETTS
No. 87-712.
Argued April 20, 1988
Decided June 29, 1988
Stevens, J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmun, and O’Connor, JJ., joined. White, J., filed an opinion concurring in the judgment, post, p. 912. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Kennedy, J., joined, post, p. 913.
Roy T. Englert, Jr., argued the cause for petitioners in No. 87-712 and respondents in No. 87-929. With him on the briefs were Solicitor General Fried, Acting Assistant Attorney General Spears, Deputy Solicitor General Merrill, William Ranter, and Howard S. Scher.
Thomas A. Barnico, Assistant Attorney General of Massachusetts, argued the cause for respondent in No. 87-712 and petitioner in No. 87-929. With him on the brief were James M. Shannon, Attorney General, and William L. Pardee, Assistant Attorney General.
Together with No. 87-929, Massachusetts v. Bowen, Secretary of Health and Human Services, et al., also on certiorari to the same court.
Briefs of amici curiae were filed for the State of Alabama et al. by Charles A. Miller and Bruce N. Kuhlik, and by the Attorneys General for their respective States as follows: Grace Berg Schaible of Alaska, Joseph I. Lieberman of Connecticut, Warren Price III of Hawaii, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, David L. Wilkinson of Utah, and Charles G. Brown of West Virginia; for the State of California by John K. Van de Kamp, Attorney General, and John J. Klee, Jr., Deputy Attorney General; for the State of New York by Robert Abrams, Attorney General, 0. Peter Sherwood, Solicitor General, Lawrence S. Kahn, Deputy Solicitor General, and Lillian Z. Cohen and Mary Fisher Bemet, Assistant Attorneys General; for the Council of State Governments et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, and Barry Sullivan; and for Victoria Grimesy et al. by Richard Rothschild.
Justice Stevens
delivered the opinion of the Court.
The principal question presented by these cases is whether a federal district court has jurisdiction to review a final order of the Secretary of Health and Human Services refusing to reimburse a State for a category of expenditures under its Medicaid program. All of the Courts of Appeals that have confronted this precise question have agreed that district courts do have jurisdiction in such cases. We implicitly answered the question in the same way when we accepted jurisdiction and decided the merits in Connecticut Dept. of Income Maintenance v. Heckler, 471 U. S. 524 (1985). Moreover, although the Medicaid program was established in 1965, the novel proposition that the Claims Court is the exclusive forum for judicial review of this type of agency action does not appear to have been advocated by the Secretary until this case reached the Court of Appeals. As we shall explain, the conclusion that the District Court had jurisdiction in these cases is supported by the plain language of the relevant statutes, their legislative history, and a practical understanding of their efficient administration. Before turning to the legal arguments, however, it is appropriate to say a few words about the mechanics of the federal financial participation (FFP) in the States’ Medicaid programs and the character of the issue decided by the District Court.
I
In 1965 Congress authorized the Medicaid program by adding Title XIX to the Social Security Act, 79 Stat. 343. The program is “a cooperative endeavor in which the Federal Government provides financial assistance to participating States to aid them in furnishing health care to needy persons.” Harris v. McRae, 448 U. S. 297, 308 (1980). Subject to the federal standards incorporated in the statute and the Secretary’s regulations, each participating State must develop its own program describing conditions of eligibility and covered services. At present, 18 different categories of medical assistance are authorized. See Connecticut Dept. of Income Maintenance v. Heckler, 471 U. S., at 528-529.
Although the federal contribution to a State’s Medicaid program is referred to as a “reimbursement,” the stream of revenue is actually a series of huge quarterly advance payments that are based on the State’s estimate of its anticipated future expenditures. The estimates are periodically adjusted to reflect actual experience. Overpayments may be withheld from future advances or, in the event of a dispute over a disallowance, may be retained by the State at its option pending resolution of the dispute.
Two procedures are available to the Secretary if he believes that a State’s expenditures do not comply with either the Act or his regulations. First: If he concludes that the State’s administration of its plan is in “substantial noncompliance” with federal requirements, he may initiate a compliance proceeding pursuant to 42 U. S. C. § 1316(a); in such a proceeding he may order termination of FFP for entire categories of state assistance, or even (theoretically) the entire state program. Should the Secretary subsequently conclude that his initial determination was incorrect, the statute provides that “he shall certify restitution forthwith in a lump sum of any funds incorrectly withheld or otherwise denied.” § 1316(c). A final order in a compliance proceeding is reviewable in the “United States court of appeals for the circuit in which such State is located.” § 1316(a)(3). Second: The Secretary may “disallow” reimbursement for “any item or class of items.” § 1316(d). “In general,... a disallowance represents an isolated and highly focused inquiry into a State’s operation of the assistance program.” The statute does not expressly provide for judicial review of a disallowance order. In several cases a State has sought direct review of a dis-allowance order in a Court of Appeals, but in each such case the court has concluded that the State should proceed in the district court. See Illinois Dept. of Public Aid v. Schweiker, 707 F. 2d 273 (CA7 1983),- and cases cited therein.
Massachusetts has participated in the. Medicaid program continuously since 1966. One of the categories of assistance covered by the Massachusetts program is the provision of medical and rehabilitative services to patients in intermediate care facilities for the mentally retarded (ICF/MR services). These services include such matters as “‘training in “the activities of daily living” (such as dressing and feeding oneself),”’ Massachusetts v. Heckler, 616 F. Supp. 687, 691 (Mass. 1985) (citation omitted) (case below), and are performed jointly by personnel from the State Departments of Mental Health and Education, working pursuant to state mental health and “special education” laws. See Massachusetts v. Secretary of Health and Human Services, 816 F. 2d 796, 798 (CA1 1987) (case below). Although the Secretary apparently would have regarded these services as covered had they been performed solely by the Massachusetts Department of Mental Health, his auditors classified them as uncovered educational services because they were performed in part by employees of the State Department of Education. On August 23, 1982, the Regional Administrator of the Department’s Health Care Financing Administration (HCFA) notified the State that he had disallowed $6,414,964 in FFP for the period July 1, 1978, to December 31, 1980. See App. to Pet. for Cert. 97a. The Departmental Grant Appeals Board affirmed this decision on May 31, 1983. Id., at 53a.
On August 26, 1983, the State filed a complaint in the Federal District Court for the District of Massachusetts. The State’s complaint invoked federal jurisdiction pursuant to 28 U. S. C. § 1331 and alleged that the United States had waived its sovereign immunity through 5 U. S. C. §702. The complaint requested declaratory and injunctive relief and specifically asked the District Court to “set aside” the Board’s order. While the case was pending, on August 20, 1984, the HCFA notified the State of a $4,908,994 FFP dis-allowance for the same category of ICF/MR services based on its audit of the period January 1, 1981, through June 30, 1982. See App. to Pet. for Cert. 92a. On March 29, 1985, this second disallowance period was upheld by the Board. On June 5, 1985, the State filed a second complaint in District Court, seeking to overturn the second disallowance. Id., at 89a.
On August 27, 1985, the District Court issued an opinion in the first disallowance case. It did not discuss the jurisdictional issue. On the merits, it held that the services in question were in fact rehabilitative, and that this classification was not barred by the fact that the Department of Education had played a role in their provision. Massachusetts v. Heckler, 616 F. Supp. 687 (Mass. 1985) (case below). Its judgment, dated October 7, 1985, simply “reversed” the Board’s decision disallowing reimbursement of the sum of $6,414,964 in FFP under the Medicaid program. App. to Pet. for Cert. 32a. On November 25, 1985, in a second opinion relying on the analysis of the first, the court reversed the Board’s second disallowance determination. Massachusetts v. Heckler, 622 F. Supp. 266 (Mass. 1985) (case below). It entered an appropriate judgment on December 2, 1985. App. to Pet. for Cert. 36a. That judgment did not purport to state what amount of money, if any, was owed by the United States to Massachusetts, nor did it order that any payment be made.
The Secretary at first had challenged the District Court’s subject-matter jurisdiction, but later filed a memorandum stating that as “a matter of policy, HHS has decided not to press the defense of lack of jurisdiction in this action.” App. 20. In his consolidated appeal to the First Circuit, the Secretary reexamined this policy decision and decided to argue that the District Court did not have jurisdiction. The Court of Appeals accepted the Secretary’s argument that the District Court could not order him to pay money to the State, but held that the District Court had jurisdiction to review the Board’s disallowance decision and to grant declaratory and injunctive relief. The court explained its understanding of the difference between relief that was wholly retrospective in nature and relief that affected the future relationship between the parties as follows:
“The disallowance decision at issue in this case, unlike that at issue in [Massachusetts v. Departmental Grant Appeals Bd. of Health and Human Services, 815 F. 2d 778 (CA1 1987)], represents an ongoing policy that has significant prospective effect. The structure of the Medicaid program (in which the Secretary ‘reimburses’ the states in advance) makes it inevitable that disallowance decisions concern money past due. Yet the Secretary uses these decisions to implement important policies governing ongoing programs. Grant Appeals Board concerned the unusual situation in which the disallowance decision had no significant prospective effect; the challenge only concerned the money allegedly past due.
“Here, in contrast, the interpretation of the Medicaid Act announced in the disallowance decision affects far more than any money past due. The special education exclusion defines the respective roles of the Commonwealth and HHS in a continuing program.
“Prospective relief is important to the Commonwealth both because the ICF/MR program is still active and because the legal issues involved have ramifications that affect other aspects of the Medicaid program. What is at stake here is the scope of the Medicaid program, not just how many dollars Massachusetts should have received in any particular year.” 816 F. 2d, at 799 (emphasis in original).
On the merits, the Court of Appeals agreed with the District Court that the Secretary could not lawfully exclude the rehabilitative services provided to the mentally retarded just because the State had labeled them (in part) “educational” services and had used Department of Education personnel to help provide them. It therefore affirmed the District Court’s holding that the decisions of the Grant Appeals Board must be reversed because the Secretary’s “special education exclusion” violated the statute. It held, however, that it could not rule that the services in dispute were reimbursable because it had “no evidentiary basis for doing so.” Id., at 804. In sum, the Court of Appeals affirmed the District Court’s declaratory judgment, vacated the “money judgment” against the Secretary, and remanded to the Secretary for further determinations regarding whether the services are reimbursable.
In his petition for certiorari, the Secretary asked us to decide that the United States Claims Court had exclusive jurisdiction over the State’s claim. In its cross-petition, the State asked us to decide that the District Court had jurisdiction to grant complete relief. We granted both petitions. 484 U. S. 1003 (1988). The basic jurisdictional dispute is over the meaning of the Administrative Procedure Act (APA), 5 U. S. C. §§702, 704. The Secretary argues that § 702, as amended in 1976, does not authorize review because this is not an action “seeking relief other than money damages” within the meaning of the 1976 amendment to that section; he also argues that even if §702 is satisfied, §704 bars relief because the State has an adequate remedy in the Claims Court. The State must overcome both arguments in order to prevail; we shall discuss them separately.
II
Since it is undisputed that the 1976 amendment to §702 was intended to broaden the avenues for judicial review of agency action by eliminating the defense of sovereign immunity in cases covered by the amendment, it is appropriate to begin by quoting the original text of § 702. Prior to 1976, it simply provided:
“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”
In 1975, in a case seeking review of a disallowance decision by the Secretary of the Department of Health, Education, and Welfare, the Court of Appeals for the Ninth Circuit concluded that the decision was reviewable in the District Court. County of Alameda v. Weinberger, 520 F. 2d 344. It would be difficult to question the fact that the disallowance decision was “agency action” that “adversely affected” the State, and that, accordingly, the State was “entitled to judicial review thereof.”
The 1976 amendment contains no language suggesting that Congress disagreed with the Ninth Circuit decision. The amendment added the following sentence to the already broad coverage of §702:
“An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States dr that the United States is an indispensable party.”
There are two reasons why the plain language of this amendment does not foreclose judicial review of the actions brought by the State challenging the Secretary’s disallowance decisions. First, insofar as the complaints sought declaratory and injunctive relief, they were certainly not actions for money damages. Second, and more importantly, even the monetary aspects of the relief that the State sought are not “money damages” as that term is used in the law.
Neither a disallowance decision, nor the reversal of a dis-allowance decision, is properly characterized as an award of “damages.” Either decision is an adjustment — and, indeed, usually a relatively minor one — in the size of the federal grant to the State that is payable in huge quarterly installments. Congress has used the terms “overpayment” and “underpayment” to describe such adjustments in the open account between the parties, and the specific agency action that reverses a disallowance decision'is described as “restitution” in the statute.
Our cases have long recognized the distinction between an action at law for damages — which are intended to provide a victim with monetary compensation for an injury to his person, property, or reputation — and an equitable action for specific relief — which may include an order providing for the reinstatement of an employee with backpay, or for “the recovery of specific property or monies, ejectment from land, or injunction either directing or restraining the defendant officer’s actions.” Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682, 688 (1949) (emphasis added). The fact that a judicial remedy may require one party to pay money to another is not a sufficient reason to characterize the relief as “money damages.” Thus, we have recognized that relief that orders a town to reimburse parents for educational costs that Congress intended the town to pay is not “damages”:
“Because Congress undoubtedly did not intend this result, we are confident that by empowering the court to grant ‘appropriate’ relief Congress meant to include retroactive reimbursement to parents as an available remedy in a proper case.
“In this Court, the Town repeatedly characterizes reimbursement as ‘damages,’ but that simply is not the case. Reimbursement merely requires the Town to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.” School Committee of Burlington v. Department of Education of Massachusetts, 471 U. S. 359, 370-371 (1985).
Judge Bork’s explanation of the plain meaning of the critical language in this statute merits quotation in full. In his opinion for the Court of Appeals for the District of Columbia Circuit in Maryland Dept. of Human Resources v. Department of Health and Human Services, 246 U. S. App. D. C. 180, 763 F. 2d 1441 (1985), he wrote:
“We turn first to the question whether the relief Maryland seeks is equivalent to money damages. Maryland asked the district court for a declaratory judgment and for injunctive relief ‘enjoin[ing] defendants from reducing funds otherwise due to plaintiffs, or imposing any sanctions on such funds for alleged Title XX violations.’... We are satisfied that the relief Maryland seeks here is not a claim for money damages, although it is a claim that would require the payment of money by the federal government.
“We begin with the ordinary meaning of the words Congress employed. The term ‘money damages,’ 5 U. S. C. §702, we think, normally refers to a sum of money used as compensatory relief. Damages are given to the plaintiff to substitute for a suffered loss, whereas specific remedies ‘are not substitute remedies at all, but attempt to give the plaintiff the very thing to which he was entitled.’ D. Dobbs, Handbook on the Law of Remedies 135 (1973). Thus, while in many instances an award of money is an award of damages, ‘[ojccasionally a money award is also a specie remedy.’ Id. Courts frequently describe equitable actions for monetary relief under a contract in exactly those terms. See, e..g., First National State Bank v. Commonwealth Federal Savings & Loan Association, 610 F. 2d 164, 171 (3d Cir. 1979) (specific performance of contract to borrow money); Crouch v. Crouch, 566 F. 2d 486, 488 (5th Cir. 1978) (contrasting lump-sum damages for breach of promise to pay monthly support payments with an order decreeing specific performance as to future installments); Joyce v. Davis, 539 F. 2d 1262, 1265 (10th Cir. 1976) (specific performance of a promise to pay money bonus under a royalty contract).
“In the present case, Maryland is seeking funds to which a statute allegedly entitles it, rather than money in compensation for the losses, whatever they may be, that Maryland will suffer or has suffered by virtue of the withholding of those funds. If the program in this case involved in-kind benefits this would be altogether evident. The fact that in the present case it is money rather than in-kind benefits that pass from the federal government to the states (and then, in the form of services, to program beneficiaries) cannot transform the nature of the relief sought — specific relief, not relief in the form of damages. Cf. Clark v. Library of Congress, 750 F. 2d 89, 104 n. 33 (D.C. Cir. 1984) (dictum) (describing an action to compel an official to repay money improperly recouped as ‘in essence, specific relief’).” Id., at 185, 763 F. 2d, at 1446 (emphasis in original) (citation omitted).
In arguing for a narrow construction of the 1976 amendment — which was unquestionably intended to broaden the coverage of §702 — the Secretary asks us to substitute the words “monetary relief” for the words “money damages” actually selected by Congress. Given the obvious difference in meaning between the two terms and the well-settled presumption that Congress understands the state of existing law when it legislates, see, e. g., Cannon v. University of Chicago, 441 U. S. 677, 696-697 (1979), only the most compelling reasons could justify a revision of a statutory text that is this unambiguous. Nevertheless, we have considered the Secretary’s argument that the legislative history of § 702 supports his reading of the amendment.
The 1976 amendment to § 702 was an important part of a major piece of legislation designed to remove “technical” obstacles to access to the federal courts. The statute was the culmination of an effort generated by scholarly writing and bar association work in the early 1960’s. Although the Department of Justice initially opposed the proposal, it eventually reversed course and offered its support. We shall comment first on the legislative materials that relate directly to the bill that passed in 1976, and then refer to the 1970 Hearing on which the Government places its principal reliance.
Two propositions are perfectly clear. The first concerns the text of the amendment. There is no evidence that any legislator in 1976 understood the words “money damages” to have any meaning other than the ordinary understanding of the term as used in the common law for centuries. No one suggested that the term was the functional equivalent of a broader concept such as “monetary relief” and no one proposed that the broader term be substituted for the familiar one. Each of the Committee Reports repeatedly used the term “money damages”; the phrase “monetary relief” was used in each Report once, and only in intentional juxtaposition and distinction to “specific relief,” indicating that the drafters had in mind the time-honored distinction between damages and specific relief. There is no support in that history for a departure from the plain meaning of the text that Congress enacted.
Second, both the House and Senate Committee Reports indicate that Congress understood that §702, as amended, would authorize judicial review of the “administration of Federal grant-in-aid programs.” The fact that grant-in-aid programs were expressly included in the list of proceedings in which the Committees wanted to be sure the sovereign-immunity defense was waived is surely strong affirmative evidence that the members did not regard judicial review of an agency’s disallowance decision as an action for damages.
If we turn to the 1970 Hearing and the earlier scholarly writings, we find that the terms “monetary relief” and “money damages” were sometimes used interchangeably. That fact is of only minimal significance, however, for several reasons. First, given the high caliber of the scholars who testified, it seems obvious that if they had intended the exclusion for proceedings seeking “money, damages” to encompass all proceedings seeking any form' of monetary relief, they would have drafted their proposal differently. Second, they cited cases involving challenges to federal grant-in-aid programs as examples of the Government’s reliance on a sovereign-immunity defense that should be covered by the proposed legislation. Third, the case that they discussed at the greatest length in the 1970 Hearing was Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682 (1949). Although they criticized the reliance on sovereign immunity in that opinion, they made no objection to its recognition of the classic distinction between the recovery of money damages and “the recovery of specific property or monies.” Id., at 688.
Judge Bork’s summary of the legislative history is especially convincing:
“Neither the House nor Senate Reports (there was no Conference Report) intimates, that Congress intended the term ‘money damages’ as a shorthand for ‘whatever forms of monetary relief would- -be available under the Tucker Act.’ To the contrary, the federal sovereign immunity case law, which the Reports discuss at length, see H. R. Rep. No. 1656, supra, at 5-8; S. Rep. No. 996, 94th Cong., 2d Sess. 4-8 (1976), suggests that Congress would have understood the recovery of specific monies to be specific relief in this context. See, e. g., Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682, 688 (1949) (contrasting ‘damages’ and ‘specific relief’ and including in the latter category ‘the recovery of specific property or monies’).
“Moreover, while reiterating that Congress intended ‘suits for damages’ to be barred, both Reports go on to say that ‘the time [has] now come to eliminate the sovereign immunity defense in all equitable actions for specific relief against a Federal agency or officer acting in an official capacity.’ H. R. Rep. No. 1656, supra, at 9; S. Rep. No. 996, supra, at 8, U. S. Code Cong. & Admin. News 1976, p. 6129 (emphasis added). That sweeping declaration strongly suggests that Congress intended to authorize equitable suits for specific monetary relief as we have defined that category. This inference is made virtually conclusive by the fact that both Reports then enumerate several kinds of cases in which the sovereign immunity defense had continued to pose an undesirable bar to consideration of the merits: that listing includes cases involving ‘administration of Federal grant-in-aid programs.’ H. R. Rep. No. 1656, supra, at 9; S. Rep. No. 996, supra, at 8, U. S. Code Cong. & Admin. News 1976, p. 6129. Specific relief in cases involving such programs will, of course, often result in the payment of money from the federal treasury. It seems to us, then, that the legislative history supports the proposition that Congress used the term ‘money damages’ in its ordinary signification of compensatory relief. We therefore hold that Maryland’s claims for specific relief, albeit monetary, are for ‘relief other than money damages’ and therefore within the waiver of sovereign immunity in section 702.” 246 U. S. App. D. C., at 186-187, 763 F. 2d, at 1447-1448.
Thus, the combined effect of the 1970 Hearing and the 1976 legislative materials is to demonstrate conclúsively that the exception for an action seeking “money damages” should not be broadened beyond the meaning of its plain language. The State’s suit to enforce § 1396b(a) of the Medicaid Act, which provides that the Secretary “shall pay” certain amounts for appropriate Medicaid services, is not a suit seeking money in compensation for the damage sustained by the failure of the Federal Government to pay as mandated; rather, it is a suit seeking to enforce the statutory mandate itself, which happens to be one for the payment of money. The fact that the mandate is one for the payment of money must not be confused with the question whether such payment, in these circumstances, is a payment of money as damages or as specific relief. Judge Bork’s explanation bears repeating:
“[The State] is seeking funds to which a statute allegedly.entitles it, rather than money in compensation for the losses, whatever they may be, that [the State] will suffer or has suffered by virtue of the withholding of those funds. If the program in this case involved in-kind benefits this wmuld be altogether evident. The fact that in the present case it is money rather than in-kind benefits that pass from the federal government to the states (and then, in the form of services, to program beneficiaries) cannot transform the nature of the relief sought — specific relief, not relief in the form of damages.” 246 U. S. App. D. C., at 185, 763 F. 2d, at 1446.
III
The Secretary’s novel submission that the entire action is barred by § 704 must be rejected because the doubtful and limited relief available in the Claims Court is not an adequate substitute for review in the District Court. A brief review of the principal purpose of § 704 buttresses this conclusion.
Section 704 was enacted in 1946 as § 10(c) of the APA. In pertinent part, it provided:
“Every agency action made reviewable by statute and every final agency action for which there is no other adequate remedy in any court shall be subject to judicial review.” 60 Stat. 243.
Earlier drafts of what became §704 provided that “only final actions, rules, or orders, or those for which there is no other adequate judicial remedy... shall be subject to such review,” or that “[e]very final agency action, or agency action for which there is no other adequate remedy in any court, shall be subject to judicial review.” Professor Davis, a widely respected administrative law scholar, has written that § 704 “has been almost completely ignored in judicial opinions,” and has discussed §704’s bar to judicial review of agency action when there is an “adequate remedy” elsewhere as merely a restatement of the proposition that “[o]ne need not exhaust administrative remedies that are inadequate.”
However, although the primary thrust of §704 was to codify the exhaustion requirement, the provision as enacted also makes it clear that Congress did not intend the general grant of review in the APA to duplicate existing procedures for review of agency action. As Attorney General Clark put it the following year, §704 “does not provide additional judicial remedies in situations where the Congress has provided special and adequate review procedures. ” At the time the APA was enacted, a number of statutes creating administrative agencies defined the specific procedures to be followed in reviewing a particular agency’s action; for example, Federal Trade Commission and National Labor Relations Board orders were directly reviewable in the regional courts of appeals, and Interstate Commerce Commission orders were subject to review in specially constituted three-judge district courts. When Congress enacted the APA to provide a general authorization for review of agency action in the district courts, it did not intend that general grant of jurisdiction to duplicate the previously established special statutory procedures relating to specific agencies.
The exception that was intended to avoid such duplication should not be construed to defeat the central purpose of providing a broad spectrum of judicial review of agency action.
In our leading opinion explaining the significance of this provision, Justice Harlan wrote:
“The Administrative Procedure Act provides specifically not only for review of ‘[a]gency action made reviewable by statute’ but also for review of ‘final agency action for which there is no other adequate remedy in a court,’ 5 U. S. C. § 704. The legislative material elucidating that seminal act manifests a congressional intention that it cover a broad spectrum of administrative actions, and this Court has echoed that theme by noting that the Administrative Procedure Act’s ‘generous review provisions’ must be given a ‘hospitable’ interpretation.” Abbott Laboratories v. Gardner, 387 U. S. 136, 140-141 (1967) (footnote omitted).
A restrictive interpretation of § 704 would unquestionably, in the words of Justice Black, “run counter to § 10 and § 12 of the Administrative Procedure Act. Their purpose was to remove obstacles to judicial review of agency action under subsequently enacted statutes....” Shaughnessy v. Pedreiro, 349 U. S. 48, 51 (1955).
The Secretary argues that § 704 should be construed to bar review of the agency action in the District Court because monetary relief against the United States is available in the Claims Court under the Tucker Act. This restrictive — and unprecedented — interpretation of §704 should be rejected because the remedy available to the State in the Claims Court is plainly not the kind of “special and adequate review procedure” that will oust a district court of its normal jurisdiction under the APA. Moreover, the availability of any review of a disallowance decision in the Claims Court is doubtful.
The Claims Court does not have the general equitable powers of a district court to grant prospective relief. Indeed, we have stated categorically that “the Court of Claims has no power to grant equitable relief.” As the facts of these cases illustrate, the interaction between the State’s administration of its responsibilities under an approved Medicaid plan and the Secretary’s interpretation of his regulations may make it appropriate for judicial review to culminate in the entry of declaratory or injunctive relief that requires the Secretary to modify future practices.. We are not willing to assume, categorically, that a naked money judgment against the United States will always be an adequate substitute for prospective relief fashioned in the light of the rather complex ongoing relationship between the parties.
Moreover, in some cases the jurisdiction of the Claims Court to'entertain the action,'or perhaps even to enter a specific money judgment against the United States, would be at least doubtful. Regarding the former dilemma: If a State elects to retain the amount covered by a disallowance until completion of review by the Grant Appeals Board, see 42 U. S. C, § 1396b(d)(5); n. 3, supra, it will not be able to file suit in the Claims Court until after the disallowance is recouped from a future quarterly payment. It is no answer to suggest that a State will not be harmed as long as it retains the money, because its interest in planning future programs for groups such as the mentally retarded who must be trained in ICF’s may be more pressing than the monetary amount in dispute. Such planning may make it important to seek judicial review — perhaps in the form of a motion for a preliminary-injunction — as promptly as possible after the agency action becomes final. A district court has jurisdiction both to grant such relief and to do so while the funds are still on the State’s side of the ledger (assuming administrative remedies have been exhausted); the Claims Court can neither grant equitable relief, supra, at 905, nor act in any fashion so long as the Federal Government has not yet offset the disallowed amount from a future payment. See § 1396b(d)(5); n. 3, supra. Regarding the latter problem: Given the fact that the quarterly payments of federal money are actually advances against expenses that have not yet been incurred by the State, it is arguable that a dispute concerning the status of the open account is not one in which the State can claim an entitlement to a specific sum of money that the Federal Government owes to it.
Further, the nature of the controversies that give rise to disallowance decisions typically involve state governmental activities that a district court would be in a better position to understand and evaluate than a single tribunal headquartered in Washington. We have a settled and firm policy of deferring to regional courts of appeals in matters that involve the construction of state law. That policy applies with special force in this context because neither the Claims Court nor the Court of Appeals for the Federal Circuit has any special expertise in considering the state-law aspects of the controversies that give rise to disallowances under grant-in-aid programs. It would be nothing less than remarkable to conclude that Congress intended judicial review of these complex questions of federal-state interaction to be reviewed in a specialized forum such as the Court of Claims. More specifically, it is anomalous to assume that Congress would channel the review of compliance decisions to the regional courts of appeals, see 42 U. S. C. § 1316(a)(3); supra, at 885, and yet intend that the same type of questions arising in the disallowance context should be resolved by the Claims Court or the Federal Circuit.
IV
We agree with the position advanced by the State in its cross-petition — that the judgments of the District Court should have been affirmed in their entirety — for two independent reasons. First, neither of the District Court’s orders in these cases was a “money judgment,” as the Court of Appeals held. The first order (followed in the second, see Part I, supra) simply “reversed” the “decision of the Department Grant Appeals Board of the United States Department of Health and Human Services in Decision No. 438 (May 31, 1983).” It is true that it describes Decision No. 438 as one that had disallowed reimbursement of $6,414,964 to the State, but it did not order that amount to be paid, and it did not purport to be based on a finding that the Federal Government owed Massachusetts that amount, or indeed, any amount of money. Granted, the judgment tells the United States that it may not disallow the reimbursement on the grounds given, and thus
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
JEFFERSON v. HELVERING, Commissioner of Internal Revenue, et al.
No. 7556.
United States Court of Appeals for the District of Columbia.
Decided Feb. 17, 1941.
D. H. Blair and George D. Brabson, both of Washington, D. C., for petitioner.
Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Newton K. Fox, Sp. Assts. to the Atty.' Gen., Department of Justice, and J. P. Wenchel, Chief Counsel, and Irving M. Tullar, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. G, for respondent.
Before GRONER, Chief Justice, and VINSON and RUTLEDGE, Associate Justices.
VINSON, Associate Justice.
The Board of Tax Appeals has agreed with the Commissioner’s determination that the petitioner has a deficiency in his income tax return for the year 1935, since he is not entitled to deduct, as he did, premium payments on five insurance policies. The Board found the facts as stipulated by the parties. Our statement of the case is based upon the stipulation.
The taxpayer was a member of the Iselin-Jefferson Company partnership. The other partner, William Iselin and Company, also a partnership, furnished most of the capital. The taxpayer furnished his services. The taxpayer had valuable connections with two textile mills, the Fitzgerald and the Cochran Cotton Mills. The IselinJefferson Company acted as a selling agent for these Mills among others. Both Mills were indebted to William Iselin and Company, and to the Chemical Bank and Trust Company of New York. The Mills needed further financing and the creditors desired some additional guaranty of their accounts. The taxpayer’s position became seriously involved, and the dissolution of the IselinJefferson Company partnership, his chief source of livelihood, was being considered. Accordingly, the taxpayer in 1931 named the William Iselin and Company partnership the beneficiary in four insurance policies to secure his guaranty of the obligations of both Mills, and in 1932 assigned one of his policies to the Bank to secure his guaranty of the Fitzgerald debt. The taxpayer paid the premiums on the five policies in 1935. It is this item that is in dispute.
The Commissioner argues that the insurance premiums are not deductible from gross income because they fall under the general provision of Section 24 (a) (l) which disallows any deductions for personal expenses. It is argued further that Section 24 (a) (4), which allows no deductions for premiums paid on insurance covering the life of anyone financially interested in the taxpayer’s business where the taxpayer is a direct or indirect beneficiary, is specifically applicable.
It is clear that when a policy is used to secure a debt the premiums cannot be deducted. The taxpayer concedes this and so the question is whether he has brought his case out of the general rule. In his attempt to show that this is a special case, the taxpayer contends that he has ceased to be a beneficiary, that the insurance was not pledged to secure a loan as in the usual case but was in substance a contract of indemnity, and therefore the premium payments are deductible as business expenses under Section .23 (a).
The facts tend to reveal, however, that the assignment and the changes in beneficiaries were meant to affect additional security for an earlier endorsement of a debt rather than to create a contract of indemnity. The policy assigned to the Bank on May 3, 1932, shows that the Bank was made the beneficiary when it was issued on December 22, 1925. Since under the terms of this policy the taxpayer could change the beneficiary unless assigned, it is probable that the Bank, in 1932, was protecting its security. The language of the petition to the Board, the stipulation of facts, the opinion of the Board, and the petition for review, indicates that the transactions involving the five insurance policies resulted from the taxpayer’s necessity of furnishing additional security for debts already endorsed. Apparently, then, the taxpayer was secondarily liable on the Mill accounts before 1931. In addition it should be remembered that the Iselin-Jefferson Company had obtained most of its capital from William Iselin and Company; the former probably remained a debtor of the latter and may well have been in the position to be called upon to make good any loss on the Mill accounts. If this were so, Jefferson by his status as a partner, was contingently liable on the Mill debts. At any rate it appears that the assignment and changes in beneficiaries were made in order to give the creditors further security.
Even if this were the first time that the taxpayer endorsed the Mill accounts, it would seem that the insurance transactions were more that of securing the debts assumed than the making of an indemnity contract. At the outset the taxpayer’s analogy to a contract of indemnity lacks perspicuity. From the facts, as stipulated, it would seem that the taxpayer was trying to protect his source of livelihood. In his petition for review here, and as far as we can tell for the first time, the taxpayer emphasized the importance to the partnership of his services. As his petition comes to a conclusion, however, he reasons that under his indemnity contracts he had to pay the insurance premiums in order to keep the Mills operating and his partnership together to save his interest in the latter. Nonetheless his brief stresses that the partnership demanded some indemnity to insure his continued services. The brief impliedly admits that if the transaction were for his personal benefit, he should pay the tax. The events leading up to the transaction make it appear as though the taxpayer was preserving his source of livelihood, and in the next to the last paragraph of his brief he again points out this conclusion. If the partnership were worried about losing his services it would be reasonable to suppose that the Company would take out insurance on the taxpayer’s life, name itself beneficiary, and pay the premiums. We cannot tell whether the “contract” was to indemnify himself against loss of livelihood, or to indemnify the partnership against loss of his services. Probably he means both, but the transaction still appears to us to be more in the nature of securing a debt than of indemnifying anybody. He may have been protecting himself and the partnership, but he was indemnifying neither except in the sense that collateral on a debt would so do.
Even if the taxpayer used his insurance as an indemnity bond, inter alia, that would not mean necessarily that he should be outside of the general rule of non-deductibility of premium payments. An insurance policy is a functional instrument, likewise an indemnity bond, but they serve different functions. Payment of a premium on an indemnity bond takes care of a risk cost. Payment of an insurance premium does this and also builds an equity. Granting, contrary to our determination, that this taxpayer used his insurance to serve the added function of an indemnity bond, he still retains an estate which will in all probability benefit him.
The taxpayer counters by stating that he lost his equity in the policies inasmuch as they were irrevocably assigned. The instrument assigning the policy to the Bank provided that the object and the extent of the assignment is to secure the assignee against the indebtedness. Hence, if the debt is paid, the assignment ceases. In the four policies in which the beneficiary was changed to William Iselin and Company, the taxpayer retained his general power under the policies to further change the beneficiaries. If the debts were paid, therefore, the taxpayer would be free to name other beneficiaries including himself. The record even fails to show how William Iselin and Company could prevent a change in the beneficiary before the debt was paid; it may be that there was a contractual agreement as to the taxpayer’s liability and behavior or that he delivered the policies to the creditor.
The taxpayer suggests that perhaps the best test of the irrevocability of these assignments is to ask the question who would have received the proceeds of the policies if he had died in 1935. Then he shows that the monies would have gone to these particular creditors, and says his estate would not have received anything. This is true whenever a policy is put up as security on a debt equal to or larger than the face value of the policy and the obligation must be paid through the use of the collateral at the insured’s death. And so this test of irrevocability suggested by the taxpayer goes not so much to the legal nature of the assignments as to whether he will receive any actual economic benefit from the policies. In this light, if the policies are used to pay the debt, it would seem that there is still a benefit to the taxpayer for his liabilities will be reduced.
This brings us to the taxpayer’s contention that since he was hopelessly insolvent, and since the Mills faced disaster when the guaranty was made, his beneficial interest was gone factually. His statement of financial condition, as of 1935, shows assets of over $161,000. He owed his partnership $159,000, and others about $20,000. This does not show hopeless insolvency. Furthermore, the value of his partnership interest is not listed among his assets. His return for 1935 shows an income of $29,-900 from the partnership. Its value to him would seem to be more than the $18,-000 needed to balance the deficit.
Of course he has guaranteed the accounts of the Mills amounting to around $545,000. He pledged $178,000 worth of insurance on this guaranty. This liability is contingent. The Mills are the primary debtors. It cannot be assumed that they will default. The record merely shows that in 1931 they had large debts, were seriously pressed for funds, and could not receive further credit on their own. It does not show that they were insolvent then, much less in 1935. Assuming that they were insolvent in 1935 these debts might be paid. The taxpayer states that this is not the ordinary case of the payment of insurance premiums on policies pledged to secure a loan of the taxpayer. With this we agree, but add, it is the stronger case of a pledge to secure the debt of another with no clear showing that the primary obligor will not be able to meet the obligation.
The taxpayer, trying to clinch his argument that his equity in the insurance is completely gone, says that the argument that he might become a beneficiary is based upon three contingencies — if the two insolvent cotton Mills pay their debts in full, if the taxpayer is able to keep up the premiums, and if the taxpayer happens to be living when the debts are paid. But such verbal niceties can be marshaled the other way. The taxpayer will be a beneficiary before or at his death unless none of the following has happened: payment of the debts in full, or in sufficient part to make the value of the policies exceed the unpaid portion by the Mills or the taxpayer; the substitution of other security for the policies; a showing that the taxpayer’s estate has not in fact received a benefit by the use of the collateral in paying the debts even though it appears that the liabilities would be reduced by the amount of the insurance proceeds.
Laying aside such hypothetical reasoning, the taxpayer, although he has made an earnest argument, has simply failed to show why his action of assigning and changing beneficiaries was not the usual case of pledging personal insurance for a debt one has chosen to assume. The taxpayer says that substance — not form should control. To this all will agree. In making his argument, however, the taxpayer under-emphasizes the substance of insurance. A holder of an insurance policy is continually buildi'ng an estate. That estate usually inures to his benefit <?r satisfaction. The taxpayer has not shown that his case is so different that he does not now have or will never have the direct or indirect benefit of his insurance and that he should escape the generally applied law in this field.
The decision of the Board of Tax Appeals is affirmed.
Affirmed.
This case arises under the Revenue Act of 1934; all sections mentioned are of that Act. U.S.C.A.Int.Rev.Code, Tit. 26.
Klein v. Com’r of Internal Revenue, 7 Cir., 84 F.2d 310; Rieck v. Heiner, D.C.W.D.Pa., 20 F.2d 208; Id., 3 Cir., 25 F.2d 453; Barron v. Com’r of Internal Revenue, 14 B.T.A. 1022.
On this point tile taxpayer calls attention to Art. 24-3 of Income Tax Regulations 86: “If, however, the taxpayer is not a beneficiary under such a policy, the premiums so paid will not be disallowed as deductions merely because the taxpayer may derive a benefit from the increased efficiency of the officer or employee insured.” “Such a policy” is one by which the taxpayer for the purpose of protecting himself insures the life of a business associate. This is not that kind of policy.
“Before the Iselin-Jeffierson Co. became the * * * selling agent for these two mills and would extend credit to them * * *, it was necessary to obtain some endorsement of their credit accounts. * * * Accordingly the petitioner agreed to endorse the credit accounts of the two mills, * * * As the depression continued, * * * the petitioner was called upon for some additional guaranty of his endorsement. $ ;¡; % >f
“Petitioner was accordingly confronted with the necessity of furnishing some additional guaranty which would enable him to retain the two accounts. * * * ”
In language similar to fn. 5.
In language similar to fn. 5.
“Undoubtedly the prime purpose of the taxpayer was to secure to Iselin-Jefferson Company the continuation of his services and his contacts with various textile manufacturers and to save that partnership from dissolution, because that partnership was the taxpayer’s only source of livelihood.” (Italics supplied)
In the Klein ease the taxpayer named the creditor, as trustee, the beneficiary. He did not reserve the right to change beneficiaries. In Parker v. Com’r of Internal Revenue, 13 B.T.A. 115, the taxpayer named his creditors as beneficiaries, but the Board said it may be supposed that if the policy survived the indebtedness the taxpayer would become a direct or indirect beneficiary.
Rieck v. Heiner, D.C.W.D.Pa., 20 F.2d 208, 211; Id., 3 Cir., 25 F.2d 453, 454.
We do not inferentially hold that if the taxpayer had been hopelessly insolvent the premium payments would have been deductible. Compare Parker v. Com’r of Internal Revenue, 13 B.T.A. 115. The reasoning of Quinn v. Com’r of Internal Revenue, 31 B.T.A. 142, relied upon by the taxpayer would not necessarily be applicable.
This reveals the substantial value of the partnership to the taxpayer, and, as has been shown, is one of the reasons he put up the policies as collateral on the Mill debts. With such an income, the taxpayer can pay the premiums. Hence the very use to which the policies were put enables the taxpayer to keep them alive and to preserve his equity.
In this connection it should he noted that when this proceeding started the taxpayer included the premium payment on a $10,000 policy which originally named as beneficiary the Georgia Holding Company, a creditor of the taxpayer. This indebtedness was paid in 1937. The beneficiary has since been changed to the taxpayer’s estate and then to Oliver Iselin. The payment of the Georgia Holding Company debt may well exemplify what will happen to the present contingent debts.
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_method
|
B
|
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.
In re TINKOFF. TINKOFF et al. v. GOLD et al.
No. 8311.
Circuit Court of Appeals, Seventh Circuit.
Feb. 9, 1944.
Rehearing Denied May 3, 1944.
Ella Tinkoff, pro se., and Paysoff Tinkoff, of Chicago, 111., for appellants.
Kellam Foster and Louis Cohen, both of Chicago, 111., for appellees.
Before EVANS, SPARKS, and MIN-TON, Circuit Judges.
MINTON, Circuit Judge.
Ella Tinkoff, the debtor, filed a petition for an arrangement under Chapter XII of the Bankruptcy Act, 11 U.S.C.A. § 801 et seq. Her petition is not in the record. However, from the indiscriminate assortment of papers and briefs that have been permitted to be filed in this case, much as • goods are commonly accepted by a storage warehouse, we gather that there are three pieces of real estate in which she claims to have some interest. These parcels are known as the Hamm, the Mailers, and certain unimproved properties. Proceedings were had in the Superior Court of Cook County, Illinois, foreclosing mortgages on all these properties. We are unable to ascertain any details as to the unimproved property which seems to have been of little value. But the facts as to the Hamm and Mailers properties seem to be as follows:
On June 22, 1934, a suit to foreclose the Mailers property was filed in the State court against Ella Tinkoff, the owner of the property, and her husband, Paysoff Tinkoff. January 28, 1936, a decree of foreclosure was entered. February 17, 1936, an order was entered denying the motion of the Tinkoffs to vacate and set aside the decree of sale. March 7, 1936, the court approved the master’s report of sale. January 26, 1937, a petition was filed by the Tinkoffs to vacate the order approving the master’s report of sale. On the same date, the petition was denied and the sale confirmed.
Prior to August 7, 1935, a foreclosure proceeding was commenced on the Hamm property. The decree of strict foreclosure was entered February 4, 1936. On September 5, 1936, the Tinkoffs filed a petition to vacate the decree of February 4, 1936. On January 26, 1937, the petititon to vacate was denied. On February 4, 1937, the Tinkoffs filed another petition to vacate the decree of February 4, 1936, but this second petition was never acted on. On May 24, 1937, the Appellate Court of Illinois denied the right of the Tinkoffs to appeal from the decree of February 4, 1936, and the order of January 26, 1937.
On November 15, 1935, Ella Tinkoff filed a voluntary petition in the bankruptcy court for relief under Section 74 of the Bankruptcy Act, 11 U.S.C.A. § 202. The bankruptcy court dismissed her petition on January 20, 1936. We affirmed on July 16, 1936 (7 Cir., 85 F.2d 305) and on October 1, 1936, denied a petition for rehearing. The ground for dismissal was that the petition in bankruptcy was not filed in good faith.
On March 6, 1936, this Court restrained the foreclosure proceedings in the State court on the Mailers property, and on November 21, 1936, the Hamm proceedings were included. On January 12, 1937, this Court vacated all of its restraining orders.
The alleged interest in the Mailers property sought to be arranged derives from a claim by Paysoff Tinkoff that the return of service of the summons made upon him in Kansas did not exemplify that the notary public who swore the serving officer was a notary, as required by Illinois decisions. We do not see how such a defect would help the debtor. Even if we assume the service on Paysoff Tinkoff was defective and not cured, that did not invalidate the service upon and proceedings against Ella Tinkoff. The service as to her being valid, whatever interest she had was subject to the jurisdiction of the court and any action taken was binding on her. This alleged defect in the service on Paysoff, if it existed, would not increase the interest of Ella Tinkoff in the property. Her interest was foreclosed by the decree. From this decree she had only an equity of redemption, which has long since expired. She therefore had no interest in the Mailers property left to her by reason of defective service on her husband, if it was defective and uncured.
It is also urged that as to the Hamm property the state proceedings are still pending, because the court made no disposition of the motion filed February 4, 1937, to vacate the decree of foreclosure entered February 4, 1936. Under the Illinois practice, this motion to be effective had to be made within thirty days after the entry of the decree sought to be vacated. Smith Hurd Ill.Rev.Stat.1943, Ch. 110, § 174(7), Ch. 77, §§ 82-84; Davis v. East St. Louis & Suburban R. Co., 290 Ill.App. 540, 542, 543, 9 N.E.2d 254. The motion by the appellants was made eleven months too late. A failure to dispose of a motion filed too late cannot affect the order to which the tardy motion was directed.
Finally, it is contended by the appellants that, although the foreclosure proceedings were begun in a court of competent jurisdiction, the initiation of the. bankruptcy suit rendered void all proceedings which had taken place in the State court subsequent to the filing of the petition in bankruptcy.
We cannot agree to this proposition. Section 74 of the Bankruptcy Act, 11 U.S. C.A. § 202, contains no automatic ouster of the jurisdiction of other courts, such as is provided by Section 75, sub. o, 11 U. S.C.A. § 203, sub. a, relating to farmer debtors. Section 75, sub. o, by its own force effects the ouster. Section 74, sub. n, merely authorizes the bankruptcy court to stay proceedings in other courts. Benitez v. Bank of Nova Scotia, 1 cir., 110 F.2d 169, 174.
No stay was entered except by this Court. Our stay was entered March 6, 1936, without notice. On March 7, 1936, before our stay order was served upon the court below, an order confirming the sale of the Mailers property was entered there. We refused to entertain any contempt proceedings for the entry of that order.
Since there was no effective stay order in force prior to our order of March 6, 1936, and since the Bankruptcy Act did not automatically stay such proceedings, we look to prior decisions to learn whether the appellants have any support for their contention that the filing of the petition in bankruptcy by its own force made void all proceedings in the State court. They rely upon Isaacs v. Hobbs Tie & Timber Co., 282 U.S. 734, 51 S.Ct. 270, 75 L.Ed. 645. In that case, the State foreclosure proceedings were begun after the bankruptcy proceedings had been instituted and after the bankruptcy trustee had thereby acquired constructive possession of the land. In the case at bar, the bankruptcy petition followed the commencement of the foreclosure proceedings in the State court.
The mortgages foreclosed in the State court were not vulnerable under the Bankruptcy Act. The Sate court was in possession of the property and was foreclosing valid mortgages when the petition in bankruptcy was filed. The filing of such petition in and of itself did not oust or affect the jurisdiction of the State court to proceed to final disposition. The rule in such circumstances is stated thus in Straton v. New, 283 U.S. 318, 326, 51 S.Ct. 465, 468, 75 L.Ed. 1060:
“Following these cases the federal courts have with practical unanimity held that where a judgment which constitutes a lien on the debtor’s real estate is recovered more than four months prior to the filing of the petition, the bankruptcy court is without jurisdiction to enjoin the prosecution of the creditor’s action, instituted pri- or to the filing of a petition in bankruptcy, to bring about a judicial sale of the real estate.
“The trustee in bankruptcy may intervene in such suits to protect the interests of the estate.”
The rule enunciated by Justice Miller in the old case of Eyster v. Gaff, 91 U.S. 521, 524, 23 L.Ed. 403, is applicable to the facts of our case and effectively disposes of the appellants’ argument. Justice Miller said:
“It is a mistake to suppose that the Bankrupt Law avoids of its own force all judicial proceedings in the State or other courts the instant one of the parties is adjudged a bankrupt. There is nothing in the act which sanctions such a proposition.
“The court in the case before us had acquired jurisdiction of the parties and of the subject-matter of the suit. It was competent to administer full justice, and was proceeding, according to the law which governed such a suit, to do so. It could not take judicial notice of the proceedings in bankruptcy in another court, however seriously they might have affected the rights of parties to the suit already pending.
“It was the duty of that court to proceed to a decree as between the parties before it, until by some proper pleadings in the case it was informed of the changed relations of any of those parties to the subject-matter of the suit. Having such jurisdiction and performing its duty as the case stood in that court, we are at a loss to see how its decree can be treated as void.
The proceedings in the State court were valid. Ella Tinkoff is not shown to have any interest in the property for which she seeks to provide an arrangement. There was no error in dismissing her petition.
The judgment of the District Court is affirmed.
Pfeil v. Loeb, 255 Ill.App. 484, and cases there cited.
Rodman v. Quick, 211 Ill. 546, 71 N.E. 1087; Culver v. Lincoln Sav. & Bldg. Ass’n, 271 Ill.App, 91.
Question: What is the 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_origin
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
UNITED STATES of America, Appellee, v. Roy Lee DAVIS, Appellant. UNITED STATES of America, Appellee, v. Arthur Earl CARTER, Jr., Appellant. UNITED STATES of America, Appellee, v. Ernest MAPLES, Jr., a/k/a Junior, Appellant. UNITED STATES of America, Appellee, v. Bernard Robert BASKERVILLE, a/k/a Pissy, Appellant.
Nos. 80-5057, 80-5059 to 80-5061.
United States Court of Appeals, Fourth Circuit.
Argued March 6, 1981.
Decided Aug. 27, 1981.
Rehearing in No. 80-5059 Denied Sept. 30, 1981.
Kenneth L. Thompson, Saul Kerpelman and Charles Nutt, Baltimore, Md. (George Russell, Jr., Nelson Kandel and Richard Cremin, Baltimore, Md., on brief), for appellants.
D. Christopher Ohly, Asst. U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty., Baltimore, Md., on brief), for appellee.
Before BUTZNER, PHILLIPS and MURNAGHAN, Circuit Judges.
MURNAGHAN, Circuit Judge:
Ray Lee Davis, Arthur Earl Carter, Jr., Ernest Maples, Jr., and Bernard Robert Baskerville were convicted of conspiracy to distribute heroin between January, 1977 and June, 1979, in violation of 21 U.S.C. §§ 846 and 841(a)(1). In addition, Davis and Maples were convicted of having traveled in interstate commerce in aid of a racketeering enterprise, in violation of 18 U.S.C. § 1952(a)(3), and Baskerville was convicted of one count, and Carter of two counts, of possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). Most of the arguments raised by the defendants concern the supposed insufficiency or inherent incredibility of the government’s evidence against them. Carter additionally petitions for a new trial on the further ground that testimony extrinsic to the acts charged — concerning alleged sales of heroin to 12 or 13 year old children that were made six to eleven years before the present conspiracy is alleged to have begun — was erroneously admitted into evidence.
The credible evidence clearly supports findings of guilt against Davis, Maples, and Baskerville. We readily affirm their convictions. The special point raised by Carter, however, gives greater pause.
Much of the trial was devoted to proving that the defendants conspired to distribute large quantities of heroin in the Baltimore, Maryland metropolitan area during the 2 'A year period charged in the indictment, i.e., from January, 1977 through June of 1979. A key prosecution witness, one James Williams, about age 25 in January, 1977, testified over objection that at age 12 or 13 he started to obtain heroin for resale from Carter. He stated that at that tender age he obtained as many as 800 heroin pills per week from Carter, which he sold for approximately $2.00 each, paying Carter from the receipts. Williams stated that he continued to sell for Carter “off and on” until his imprisonment in 1971 for armed robbery. Thus, the prior acts about which Williams was permitted to testify began eleven years and ended six years before the conspiracy on which the prosecution was based is alleged to have commenced. No cautionary instruction was asked or given.
The general rule is that the prosecution may not introduce evidence of extrinsic offenses to demonstrate the defendant’s propensity to commit unlawful acts or to prove that the defendant committed the crime with which he is presently charged. United States v. Beechum, 582 F.2d 898, 910 (5th Cir. 1978) (en banc). However, Rule 404(b) of the Federal Rules of Evidence provides that “evidence of other . . . wrongs, or acts . .. may ... be admissible ... as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Even if one of these exceptions apply, if the probative value of the extrinsic acts “is outweighed by the risk that its admission will create a substantial danger of undue prejudice to the accused,” United States v. Woods, 484 F.2d 127, 134 (4th Cir. 1973), the evidence must be excluded. See Fed.R.Ev. 403. “In assessing probative value, the trial court must take into consideration not only relevance but also the necessity and reliability of the evidence.” United States v. Di-Zenzo, 500 F.2d 263, 266 (4th Cir. 1974).
Rules 403 and 404 should have been applied by the trial court to exclude the testimony of sales by Carter so remote in time and so possessed of a propensity to prejudice. We reject the argument that the prior sales tended to prove Carter’s “intent” to commit the present offenses. See United States v. Coades, 549 F.2d 1303, 1306 (9th Cir. 1977) (error occurred in admitting evidence of a prior conviction for bank robbery in order to establish the existence of an intent to rob); cf. United States v. Beechum, 582 F.2d 898 (5th Cir. 1978). The district court erred when it allowed the testimony to be admitted.
The government also suggests that the Williams’ testimony concerning the earlier sale of narcotics was admissible as part of “a pattern of dealings which is a course of [a] plan or scheme.” However, the “pattern of dealings” exception to the general rule is generally invoked to admit evidence of contemporaneous extrinsic offenses rather than evidence of stale offenses. See, e.g., United States v. Masters, 622 F.2d 83, 85-88 (4th Cir. 1980) (at trial for unlawful dealing in firearms, taped conversations of negotiations where defendant bragged to undercover agents about his ability to supply practically any type of weapon was properly admitted “to complete the story of the crime on trial by proving its immediate context of happenings near in time and place”). The government may not use evidence of misdeeds long past to prove that the defendant committed the crimes with which he is now charged.
Nevertheless, although the trial court erred in admitting the evidence, we are satisfied that, in the context of the case, the error was harmless. Fed.R.Crim.P. 52. The test for harmlessness for nonconstitutional error is whether it is probable that the error could have affected the verdict reached by the particular jury in the particular circumstances of the trial. United States v. Nyman, 649 F.2d 208 (4th Cir. 1980). See Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1948). In considering the harmlessness of the error, it is proper to consider other evidence of the defendant’s guilt. United States v. Coades, supra, 549 F.2d at 1306 (although introduction of evidence of prior conviction for bank robbery constituted error in bank robbery prosecution, error was harmless in light of overwhelming proof of guilt); United States v. Tibbetts, 565 F.2d 867, 868 (4th Cir. 1977). Here the evidence supporting Carter’s conviction was so conclusive, that it is altogether unlikely that the error affected the verdict.
Both Williams and William Butler, a co-conspirator testifying under a favorable plea agreement, reported seeing Carter along with Davis, Maples and Baskerville, on a number of occasions cutting and repackaging large amounts of heroin for redistribution in the. Baltimore area. Butler once saw Carter give Davis approximately $5,000 in return for several hundred heroin packets. Two other witnesses testified that they had sold up to 100 $50 packets of heroin per week for Carter. Police undercover agent Charles Gaskins testified about three occasions in' 1978 when he purchased heroin directly from Carter. On one of those occasions, Gaskins approached Carter about obtaining a quantity of pure heroin. Carter referred him to Baskerville who obtained a small quantity of the drug in exchange for $50. Thus, testimony implicating Carter was so conclusive that we do not think the error affected the judgment of the jury.
In light of the evidence, the error complained of was harmless.
AFFIRMED.
. Only Carter objected. The other defendants did not.
. See Fed.R.Ev. 404(b):
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Rule 404(b), which became effective with most of the other Federal Rules of Evidence on July 1, 1975, “is a restatement of existing federal practice.” United States v. Masters, 622 F.2d 83, 85 n.2 (4th Cir. 1980).
. “[E]vidence of similar acts is relevant to so wide and unclassifiable a range of issues that the exclusionary rule has become one of qualified admission, aptly phrased: ‘Evidence of other offenses may be received if relevant for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime.’ ” United States v. Di-Zenzo, 500 F.2d 263, 265 (4th Cir. 1974).
. The government also indicates that it questioned Williams about his prior dealings with Carter “in anticipation of possible attempts to impeach Williams on the grounds that he had been dealing in drugs since the age of 12 or 13.” However, such potentially prejudicial testimony should not have been brought out on direct examination solely in anticipation of an attack by the defense on Williams’ credibility, which might, indeed, never come. The government was obliged to wait and see if the defense would, in fact, raise the issue of Williams’ early dealing. Only then, if at all, might the government properly rebut the impeachment in its redirect examination of Williams.
. At trial, Butler denied his earlier account to that effect given to the grand jury, but the grand jury testimony was admitted at the trial as substantive evidence.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_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.
The ELMO DIVISION OF DRIVE-X COMPANY, Inc., et al., Appellants, v. Paul Rand DIXON, The Federal Trade Commission, et al., Appellees.
No. 18559.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 24, 1964.
Decided Feb. 11, 1965.
Petition for Rehearing En Banc Denied May 6, 1965.
Fahy, Circuit Judge, dissented.
Mr. Geo. Stephen Leonard, Washington, D. C., for appellants. Mr. Richard L. Hirshberg, Washington, D. C., also entered an appearance for appellants.
Mr. David Epstein, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Miss Sylvia A. Bacon, Asst. U. S. Attys., were on the brief, for appellees. Mr. Harold D. Rhynedance, Jr., Atty., Federal Trade Commission, also entered an appearance for appellees.
Before Prettyman, Senior Circuit Judge, and Fahy and Burger, Circuit Judges.
PER CURIAM:
Appellant sought declaratory and injunctive relief to stop the Federal Trade Commission from continuing with a complaint proceeding on the ground that a consent decree in an earlier proceeding requires the Commission to proceed by way of reopening that case. The District Court dismissed for want of jurisdiction; we must accordingly assume, for the purposes of the appeal, the truth of facts well pleaded. They are essentially the following: that appellant at all relevant times advertised and sold proprietary medicines; that in 1952 the Commission and appellant’s predecessor in interest entered into a consent settlement with respect to certain advertising practices the Commission found objectionable ; that the settlement of that complaint proceeding provided that it could be set aside “in whole or in part under the conditions and in the manner provided in paragraph (f) of Rule V of the Commission’s Rules of Practice; that Rule V provided for a reopening procedure whereby the Commission could set aside the consent settlement or any sever-able part thereof on finding a change of law or fact or that the public interest so required, and could thereafter undertake corrective action by adversary proceedings under the original or a new complaint as to any acts or practices not prohibited by any remaining provisions of the settlement; that the Commission over appellant’s objections has sidestepped the stipulated reopening procedure and instituted a new complaint dealing with substantially the same matters covered by the consent decree; that the Commission’s actions have caused and will cause substantial prejudice to appellant in its business and reputation, would subject it to full scale trial twice upon the same charges and would constitute a continuing forfeiture of its property resulting in irreparable injury; that appellant has exhausted its administrative remedies, since no order has been issued by the Commission which is appealable directly to the Court of Appeals.
We hold that this complaint states a claim for relief and that the action is within the subject-matter jurisdiction of the District Court.
Statutory provisions concerning review of agency action by the Courts of Appeals do not in and of themselves, as the dissent seems to imply, preclude District Court jurisdiction. A. F. of L. v. NLRB, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940), makes this clear. There the Supreme Court held Wagner Act' provisions for Court of Appeals review foreclosed appellate review of § 9 (c) certifications except as incidental to review of orders restraining unfair labor practices. The Court went on to point out that whether District Courts could “review” certification proceedings was another question entirely, a question which was later resolved in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), discussed infra.
The question we must resolve under A. F. of L. v. NLRB, supra, is thus whether Congress intended to foreclose District Court jurisdiction in the present case, given that its provision for Court of Appeals review does not per se preclude all District Court jurisdiction. Absent any clear directive in the statute itself or in the legislative history, it would seem necessary to decide this question on principle and by analogy to previous cases.
So proceeding, we see no reason to bar District Court jurisdiction here, for relief in that court is appellant’s only effective remedy, as we will demonstrate. The prospect of ultimate appellate review of any final order issuing out of the new complaint proceeding is not adequate. The type of procedural error appellant asserts is not of a kind which affects the Commission’s substantive findings; no one suggests that the Commission’s complaint procedure is unreliable as a fact-finding mechanism. The dissent concedes that the propriety of the Commission’s choice of procedure is not per se unsuited for judicial review. Once the feasibility of review is admitted, our inquiry should be directed to the appropriate time for such review.
Appellant does not seek review of any substantive determination made by the Commission; on the contrary, appellant concedes the Commission’s right initially to pass on the legality of appellant’s practices. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938), is thus not in point. In Myers, the petitioner had sought an injunction against an NLRB hearing claiming the Board lacked jurisdiction because the employer’s business did not affect interstate commerce. In order for the District Court to grant the relief petitioner sought it would have had to determine an issue allocated for initial determination to the agency. The Supreme Court observed that to allow the petitioner’s suit would “in effect substitute the District Court for the Board as the tribunal to hear and determine what Congress declared the Board exclusively should hear and determine in the first instance.” Id. at 50, 58 S.Ct. at 463. Appellant here, unliké the petitioner in Myers, objects not to the fact of the Commission’s making an initial substantive determination but rather to the process by which it has chosen to do so. And there would seem to be no such basis here to defer to any procedural “expertise” the Commission may have as there was to defer to the Labor Board’s ability to decide what “affects interstate commerce” in Myers.
We see no ground on which we can distinguish the present case from B. F. Goodrich Co. v. FTC, 93 U.S.App.D.C. 50, 208 F.2d 829 (1953), appeal after remand, 100 U.S.App.D.C. 58, 242 F.2d 31 (1957). That case sustained the jurisdiction of the District Court to enjoin enforcement of the Commission’s Quantity-Limit Rule 203-1 on the ground that the Commission had promulgated the rule without first making the findings on which Congress had expressly conditioned its statutory grant of authority to make such rules. Cf. Leedom v. Kyne, 101 U.S.App.D.C. 398, 249 F.2d 490 (1957), aff’d, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958) (District Court has jurisdiction where Board violates express condition of its authority to determine appropriate bargaining units); Skinner & Eddy Corp. v. United States, 249 U.S. 557, 39 S.Ct. 375, 63 L.Ed. 772 (1919) (Brandeis, J.) (District Court has jurisdiction where ICC permits new rate filing without hearing required by statute).
In Goodrich, supra, Kyne, supra, and Skinner & Eddy, supra, the agency’s action violated express statutory conditions of its authority which were found to give rise to enforceable rights in the parties for whose protection they existed. In the present case, appellant’s rights are not spelled out so explicitly in the statute itself. 15 U.S.C. § 45(b) provides:
“ * * * [T]he Commission may at any time, after notice and opportunity for hearing, reopen and alter, modify, or set aside, in whole or in part, any report or order made or issued by it under this section, whenever in the opinion of the Commission conditions of fact or of law have so changed as to require such action or if the public interest shall so require : Provided, however, That the said person, partnership, or corporation may, within sixty days after service upon him or it of said report or order entered after such a reopening, obtain a review thereof in the appropriate court of appeals of the United States * *
(Initial emphasis added.) We need not decide whether this language in the abstract amounts to the kind of “plain statutory command” on which District Court jurisdiction was premised in Leedora v. Kyne, supra. Here the parties themselves by the consent decree have put a construction upon the statute which renders its directive of such a nature. The Commission promulgated Rule V (f) to implement § 45(b), and entered a consent order incorporating that Rule.
We hold merely that the incorporation of Rule V(f) into the consent decree which is binding on appellant and is equally binding on the Commission gives rise to an enforceable right in appellant to require the Commission to abide by the Rule.
In our view it is not controlling that the terms of Rule V(f) do not themselves appear in the statute; such terms do not lend themselves to the rigidities of a statute and would not likely be found in the statute; rather they implement the basic statutory scheme. It is the Commission, not Congress, which has the task of shaping the general statutory directive of § 45(b) into workable procedural rules consistent with the congressional intent. The Commission can best judge which procedures are feasible; statutory rules of practice might not be sufficiently flexible to adapt to changing needs. But where, as here, the Commission promulgates a Rule filling in the statute’s interstices, as Congress contemplated, and incorporates such a Rule into a consent settlement, we see no reason to distinguish between such a Rule and the statutory jurisdictional predicates involved in Goodrich, Kyne, and Skinner & Eddy. 3 ?
The District Court, then, has jurisdiction to entertain appellant’s complaint. In answering the question whether that complaint states a claim for relief which will support an injunction we need not inquire whether the statutory language alone or taken together with the promulgation of the implementing Rule, would give rise to an enforceable right. The incorporation of that Rule into the consent order “vested” appellant with a right to a reopening hearing.
The Commission’s authority to promulgate the Rule and to incorporate it into consent agreements is unquestioned; it cannot and does not assert that it may avoid the obligation it here undertook because of “incapacity.” And of course the Commission is free to alter its Rules of Practice as it sees fit, provided it does not contravene the statute. But it may not unilaterally obliterate a part of the consideration — indeed an important part —by which it secured appellant’s assent to be bound by a cease and desist order.
Appellant does not ask us for an injunction against an abuse of discretion. It contends rather that the Commission’s duty to proceed against it, if at all, according to Rule V(f) was “ministerial.” We agree. When the thrust of a statutory command addressed to a public official is unmistakable, his duty to comply with it is “ministerial.” This we believe to be the essence of Goodrich, Kyne, and Skinner & Eddy.
We have said that we can see no significant difference, in the context of this case, between the commands addressed by statute to the agency officials in those cases and the command of the Rule here adopted to implement § 45(b) and written into the consent agreement. Of course, the Commission, and only it, had discretion whether to proceed at all against appellant in relation to the advertising practices which were the subject of the agreement. But once the discretionary decision to act was taken, the choice of procedure was prescribed by § 45(b) of the statute as implemented by the parties by incorporating the Commission’s own Rule into the consent decree. In sum, given that the Rule was a term of the agreement, the duty to proceed according to its unambiguous provision was clear.
Were this an action between private parties, appellant would be hard pressed to demonstrate absence of an adequate remedy at law and this would ordinarily render specific relief inappropriate. Here, however, the injury which appellant asserts is one for which any adequate legal remedy is very remote.
Indiana & Michigan Elec. Co. v. FPC, 224 F.Supp. 166 (N.D.Ind.1963), cited by the dissent to show the availability of other adequate relief to appellant, is in-apposite. The premise of that case is that procedural errors committed by the Commission in the course of an otherwise lawful proceeding can be remedied by the grant of a new hearing by a Court of Appeals reviewing a final order if they appear to prejudice the reliability of the Commission’s fact findings. And indeed the remand envisioned would be adequate to remedy the wrong claimed in the Indiana case — denial of a fair hearing. As we have pointed out above, however, such a remand would serve no purpose here, since appellant concedes the reliability of the Commission’s complaint procedure. The gist of appellant’s complaint is rather that the Commission may not institute any complaint proceeding against it in relation to matters covered by the consent order until the necessary preliminary findings have been made at a reopening hearing reviewable by a Court of Appeals. Given the nature of the injury claimed, an appellate court reviewing an order resulting from the new complaint proceeding can afford appellant no meaningful remedy.
We hold that the unavailability of other adequate relief justifies the issuance of an injunction against the new complaint proceeding upon a proper showing. Appellant’s complaint thus states a claim for relief which the District Court must entertain. That court on remand may of course explore any factual issues tendered concerning the identity of the practices subject to the consent order and those here proceeded against, and any effects on such practices which appellant’s intervening change of corporate form may have had. We have not dealt with these matters, urged upon us by the Commission, since they were not raised in the District Court, which found only that it lacked jurisdiction to proceed. If it shall appear that the practices now complained of by the Commission vary significantly from those governed by the consent settlement, appellant cannot object to a new complaint directed at new conduct.
Reversed and remanded for further proceedings.
. Compare American Drug Corp. v. FTC, 149 F.2d 608 (8th Cir. 1945), remanded to the Commission, 160 F.2d 103 (1947), holding that a Court of Appeals has jurisdiction to review an order of the FTC setting aside a consent order without the hearing contemplated by 15 U.S.C. § 45 (b), discussed infra. Here, in contrast, the Commission has entered no order purporting to set aside the existing consent order. See also n. 7 infra.
. The decision was not premised, as the dissent implies, on the unavailability of judicial review at a later stage. A Court of Appeals reviewing a cease and desist order invoking the Quantity-Limit Rule to negative a cost-justification defense presumably could consider the validity of that rule.
. Skinner & Eddy is especially pertinent, since the statute there provided that the Commission might allow the new filing only after a hearing had established changed conditions. The Supreme Court sustained District Court jurisdiction to enjoin the filing though the petitioner had not sought relief within the Commission, since the complaint alleged that the Commission had exceeded its powers and, like appellant’s complaint here, made no claim that the Commission had erred in consideration of the merits of a substantive issue consigned to it for initial determination.
. The Commission argues that since the statute says the Commission “may” reopen, no such mandatory language appears as supported District Court jurisdiction in Kyne. While not reaching the question of the sufficiency of the statutory language alone to support jurisdiction, we note in passing that the Commission’s argument is not weighty. A provision that the Commission “shall” reopen would make no sense at all: reopening is meant to be discretionary with the Commission, and reopenings the exception rather than the rule. We think it more likely that the language means the Commission may reopen any order if it chooses, and if it does so, it shall proceed in the manner detailed in the statute.
. Even when not commanded by statute, the institution by an agency of regulations governing procedure may prevent deviation from them as long as they remain in effect. Cf. Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959).
. As noted supra, the present case does not present the questions whether § 45(b) ly itself requires the type of hearing afforded under Rule V (f), and if so whether that section itself confers a right enforceable in a District Court action.
. The Rule V (f) procedure requires a determination that there has been a change of law or fact — or that there is some public interest consideration — which justifies setting aside a consent order. Only after a hearing on these preliminary issues is the order to be disturbed at all under the Rule, and only after there has been such a setting aside is the Commission free under the Rule to bring a new complaint proceeding against any practice not governed by such parts of the consent order as remain in force.
Section 45(b) itself provides for direct Court of Appeals review of the outcome of reopening hearings. Congress thus apparently sought to insure that new complaint proceedings would not be instituted concerning practices subject to existing consent orders unless the prospective respondents first had a chance for judicial review of the necessity for disturbing such orders. This is some evidence that Congress, at least, considers the finality of consent orders to be of more than trivial concern.
By failing to hold the hearing contemplated by the statute and by not entering an order setting aside the existing consent order, the Commission subverts the opportunity for Court of Appeals review given by the statute. See n.l, supra.
. The Supreme Court long ago indicated that mandamus would lie in such a case:
“Unless * * * mandamus is to become practically valueless, and is to be refused even where a public officer is commanded to do a particular act by * * • * a particular statute, * * * [the writ] should be granted. Every statute to some extent requires construction by the public officer whose duties may be defined therein. Such officer must read the law, and he must therefore * * * construe it * * *. But that does not necessarily * * * make the duty * * * anything other than a purely ministerial one.”
Roberts v. United States, 176 U.S. 221, 231, 20 S.Ct. 376, 379, 44 L.Ed. 443 (1900).
. See McKay v. Wahlenmaier, 96 U.S.App. D.C. 313, 226 F.2d 35 (1955) (District Court has power to set aside “patently erroneous” application by Secretary of Interior of own regulation); Local Union No. 112, Int’l Union Allied Indus. Workers v. Rothman, 209 F.Supp. 295 (D.D.C. 1962) (District Court compels NLRB General Counsel to proceed to hearing at instance of charging party, since neither the statute nor the Board’s regulátions give General Counsel authority to settle complaints after issuance absent agreement of all parties).
. The need to insulate public officials from damage claims has led courts to find them immune from damage liability for failure to perform duties of the kind we find “ministerial” for the purposes of this action. The threat of liability in damages is likely to inhibit an official from “zealous and fearless administration of the law,” Cooper v. O’Connor, 69 App.D.C. 100, 105, 99 F.2d 135, 140, 118 A.L.R. 1440, cert. denied, 305 U.S. 643, 59 S. Ct. 146, 83 L.Ed. 414 (1938), as the threat of an injunction is not. This immunity extends to erroneous construction and application of statutes. See, e.g., Taylor v. McGrath, 90 U.S.App.D.C. 201, 194 F.2d 883 (1952). See generally Commercial State Bank of Roseville v. Gidney, 174 F.Supp. 770 (D.D.C.1959), aff’d, 108 U.S.App.D.C. 37, 278 F.2d 871 (1960); Davis, Administrative Officers’ Tort Liability, 55 Mich.L.Rev. 201 (1956).
Nor would appellant’s.likelihood of success be greater in a suit against the United States under the Tort Claims Act. Even if the official conduct here involved would be found for the purposes of that Act to be the violation of a ministerial duty rather than the irremediable abuse of a discretionary one, the Act excepts interference with contract rights — the essence of appellant’s claim — from its purview. 28 U.S.C. § 2680(h).
. Even if an appellate court could devise effective relief at this stage, the litigant who has failed first to seek relief in a District Court runs the risk of being es-topped to complain under the principle of St. Regis Paper Co. v. United States, 368 U.S. 208, 82 S.Ct. 289, 7 L.Ed.2d 240 (1962).
. We do not think the procedure now directed by this court, i.e., a remand to the District Court for limited purposes, is so “cumbersome” that it should divert us from requiring the Commission to adhere to its own Rules and its own explicit consent decree. Procedural safeguards are often cumbersome in a relative sense, but short cuts and cutting of procedural corners by a regulatory body are pregnant with mischief.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
|
songer_r_natpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MARKHAM v. A. E. BORDEN CO., Inc., et al.
No. 4729.
United States Court of Appeals, First Circuit.
Aug. 21, 1953.
Rehearing Denied Oct. 20, 1953.
Cedric W. Porter, Boston, Mass. (Raymond E. Bernard, Heard, Smith, Porter & Chittick and Brown, Field & McCarthy, Boston, Mass., on the brief), for appellant.
Irving U. Townsend, -Jr.,' Boston, Mass. (Emery, Booth, Townsend, Miller & Weidner, on the brief), for appellees.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
HARTIGAN, Circuit Judge.
This is an appeal from a judgment entered in the United States District Court for the District of Massachusetts on November 24,1952, dismissing the complaint in a copyright infringement suit. Plaintiff, C. R. Markham, is a Chicago, Illinois, advertiser and the defendants are a Massachusetts corporation and its officers and directors, citizens of that state.
The Markham copyrights consist of trade catalogs of refrigeration supplies and accessories allegedly compiled from more than a year of extensive research and at an expense of about $60,000. A. E. Borden Co., Inc., distributed two catalogs in 1948 and 1950 which contained the alleged infringements. In view of the long and painstaking opinion of the court below, reported in 108 F.Supp. 695, we think it is unnecessary for us to elaborate on the facts.
The district court found that the defendant copied from the plaintiff certain copyrightable material; that the plaintiff had a valid copyright on this material and that the defendant had not resorted to a common source; that there were nine instances of such copying from the hundreds of items listed in the trade catalogs. However, the district court held that despite this copying of copyrighted material there had been no infringement because the copying was not “material and substantial.”
The appellant contends that this rule of law was erroneously applied in view of § 3 of the Copyright Act, the component parts section. This section affords a blanket protection for magazines, periodicals and the like by providing that one copyright on such a publication will protect each part thereof as if it had been separately copyrighted. See King Features Syndicate v. Fleischer, 2 Cir., 1924, 299 F. 533. Therefore, it is asserted that the test of material and substantial infringement has no application to the catalogs in this case.
We are constrained to agree with the appellant’s contention. The record before us amply supports the finding of the district court that the appellant’s description and presentation of certain refrigeration supplies, synthesized from data which the appellant assembled, contained the degree of originality which entitles him to copyright protection. This protection is clearly delineated in 17 U.S.C. § 3 and we perceive no reason for the inapplicability of that section.
The appellee asserts that § 3 is inapplicable because it expressly protects only “composite works or periodicals”, whereas the catalogs in this case are mere compilations, covered by § 7 rather than § 3. In support of this argument, the appellee cites the definition of Judge Learned Hand, in Shapiro, Bernstein & Co. v. Bryan, 2 Cir., 1941, 123 F.2d 697, 699, “ * * * ‘composite works,’ by which we understand those to which a number of authors have contributed distinguishable parts, which they have not however, ‘separately registered’ * * We agree with this statement but essentially it means that “composite works” are those which contain distinguishable parts which are separately copyrightable. See King Features Syndicate v. Fleischer, supra. We think that the appellee unjustifiably expands this concept in its assertion that, “In other words, section 3 of the Act simply makes clear thatr where the work is of a character having a number of separately authored distinguishable and individually copyrightable component parts — components like the separate stories in a weekly magazine — then the one copyright taken on the whole composite work does protect each such component part as though the separate authors had individually copyrighted each his own part.”
There is nothing in the statute to indicate that the protection of component parts is limited to composite works whose parts are separately authored. A broader protection is more consistent with the general purposes of the Copyright Act and is clearly within the language of § 3. An original achievement in the publication of a trade catalog, such as in this case the authorship of a comprehensive library, concisely describing the function and utility of refrigeration supplies, would have to be protected as to all component parts in order for the protection to be meaningful. Otherwise, if only the whole catalog were protected, and not each of its parts, then various wholesalers could select just a few items from the copyrighted catalog, according to each wholesaler's particular inventory, or according to each wholesaler’s particular preference for certain illustrations or descriptions. If such a selective pirating were allowed by applying the “material and substantial” test to the whole catalog rather than to each of its parts, then the copyright on the catalog would seem to have very little value. Such a result would be inconsistent with the policy of protecting original achievements in this area and the statutory language does not indicate that such a result was intended.
The district court found that the nine items which defendant copied from the plaintiff did not derive from a common source, from some work in the public domain. In view of this finding, it is a true but irrelevant assertion in appellee’s brief that “section 3 of the Act obviously may not be applied to a trade catalog compilation, a mere collection and alteration of things already in the public domain * The plaintiff did not merely collect and alter existing descriptions of refrigeration supplies. He collected data on the supplies and conceived a lucid and forceful description by arrangement of the essential data. The district court found this effort sufficiently original to justify copyright. The originality consists in the description of each item, not in the arrangement of the various descriptions. Therefore, each copyrightable item in plaintiff’s catalog is a component part protected by § 3.
Some decisions contain dicta which confuse the distinct question of the separate protection of a component part with the material and substantial test, which applies to infringement generally, either of a part or of a whole. See Mathews Conveyor Co. v. Palmer-Bee Co., 6 Cir., 1943, 135 F.2d 73; Perkins Marine Lamp & Hardware Co. v. Goodwin Stanley Co., D.C.N.Y.1949, 86 F.Supp. 630; Sieff v. Continental Auto Supply, D.C.Minn.1941, 39 F.Supp. 683. This confusion apparently originates in the indiscriminate use of a rule which has its chief utility in protecting literary and scientific endeavors, e.g. Toksvig v. Bruce Pub. Co., 7 Cir., 1950, 181 F.2d 664; Henry Holt & Co., to Use of Felderman v. Liggett & Myers Tobacco Co., D.C.Pa.1938, 23 F.Supp. 302, and the danger of confusion is increased by a failure to distinguish between a compilation such as a city directory, R. L. Polk & Co. v. Musser, D.C.Pa.1952, 105 F.Supp. 351, affirmed 3 Cir., 1952, 196 F.2d 1020, and a composite work.
However, the component parts of trade-catalogs have been protected under § 3 without any inquiry as to whether the whole catalog was materially and substantially infringed. In Da Prato Statuary Co. v. Giuliani Statuary Co., C.C.Minn. 1911, 189 F. 90, at page 93, the court said: “The complainant having copyrighted its entire catalogue was entitled to the protection of the copyright law as to each cut contained therein; * * *. Other cases have held likewise. National Cloak & Suit Co. v. Kaufman, C.C.Pa.1911, 189 F. 215; Lindsay & Brewster, Inc., v. Verstein, D.C.Me.1937, 21 F.Supp. 264; see Basevi v. Edward O’Toole Co., D.C.N.Y. 1939, 26 F.Supp. 41. The findings in the instant case, which are amply supported by the record, require the application of § 3 of the Copyright Act and the result is that nine of the plaintiff’s component parts have been infringed in each of the catalogs published by the defendant in 1948 and 1950, making a total of eighteen infringements. It was erroneous for the district court to rule that these nine instances of copying did not amount to infringement.
Since there is no showing on the amount of damages arising from these infringements, the plaintiff is entitled to be compensated in the manner provided in 17 U.S.C. § 101(b). We think it is inappropriate for us to assess these damages, as appellant has urged. This highly discretionary function, see F. W. Woolworth Co. v. Contemporary Arts; 1952, 344 U.S. 228, 73 S.Ct. 222 and Douglas v. Cunningham, 1935, 294 U.S. 207, 55 S.Ct. 365, 79 L.Ed. 862, is best performed by the trier of the facts. This is especially so in this case in view of the finding of the district court that Borden distributed its two infringing catalogs with notice of the plaintiffs’ copyright, and therefore the trial court is not confined by the statutory limitations in its assessment of damages.
The judgment of the district court is reversed and the case is remanded to that court with direction to assess damages and enter judgment for the plaintiff; appellant recovers costs on appeal.
. 17 U.S.C. § 3 provides:
“Protection of component parts of work copyrighted; composite worhs or periodicals
“The copyright''provided by this title shall protect all the copyrightable component parts of the work copyrighted, and all matter therein in which copyright is already subsisting, but without extending the duration or scope of such copyright. The copyright upon composite works or periodicals shall give to the proprietor thereof all tile rights in respect thereto which he would have if each part were individually copyrighted under this title. July 30, 1947, c. 391, § 1, 61 Stat. 652; Oct. 31, 1951, e. 655, § 16(a), 65 Stat. 716.”
. 17 U.S.C. §7 provides:
“Copyright on compilations of works in public domain or of copyrighted works; subsisting copyrights not affected,
“Compilations or abridgments, adaptations, arrangements, dramatizations, translations, or other versions of works in the public domain or of copyrighted works when produced with the consent of the proprietor of the copyright in such works, or works republished with new matter, shall be regarded as new works subject to copyright under the provisions of this title; but the publication of any such new works shall not affect the force or validity of any subsisting copyright upon the matter employed or any part thereof, or be construed to imply an exclusive right to such use of the original works, or to secure or extend copyright in such original works. July 30, 1947, c. 391, § 1. 61 Stat. 652.”
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_numresp
|
3
|
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.
J. W. McTIERNAN, Plaintiff-Appellant, v. Marvin FRANKLIN, Acting Secretary of the Interior of the United States of America, et al., Defendants-Appellees.
No. 74-1266.
United States Court of Appeals, Tenth Circuit.
Argued Nov. 11, 1974.
Decided Jan. 7, 1975.
Jay R. Bond, Oklahoma City, Okl., for plaintiff-appellant.
George Verity, Oklahoma City, Okl. (David T. Burleson, El Paso, Tex., on the brief), for defendants-appellees El Paso Nat. Gas Co., Inexeo Oil Co., Getty Oil Co., Freeport Oil Co. and R. G. Anderson.
Peter B. Bradford, Oklahoma City, Okl. (Ray G. Moss, Oklahoma City, Okl., on the brief), for defendant-appellee Northern Nat. Gas Co.
Dirk D. Snel, Dept, of Justice, Washington, D. C. (Wallace H. Johnson, Asst. Atty. Gen., William R. Burkett, U. S. Atty., James M. Peters, Asst. U. S. Atty., Oklahoma City, Okl., Edmund B. Clark, Dept, of Justice, on the brief), for defendant-appellee Secretary of the Interi- or.
Richard L. Dugger, Dist. Atty., Sayre, Okl., for defendant-appellee Bd. of County Commissioners of Roger Mills County, Oklahoma.
Wallace E. Robertson, Oklahoma City, Okl., for defendant-appellee, Statex Petroleum, Inc.
Before MURRAH, HILL and HOLLOWAY, Circuit Judges.
HILL, Circuit Judge.
This action results from a Board of Land Appeals’ (Board) rejection of certain non-competitive oil and gas lease offers because of uncertain title. The applicant, J. W. McTiernan, filed suit in the United ■ States District Court for the Western District of Oklahoma seeking, by amended pleadings, reversal of the Board’s decision and an order directing it to reconsider the lease offers on the basis that the United States owned the minerals in question. The district court dismissed the action, and we affirm.
At issue are five tracts of land located in Roger Mills County, Oklahoma. In 1939 or 1940 these tracts were sold for delinquent taxes and purchased at a tax resale by the County’s Board of Commissioners. Some time thereafter the Commissioners sold these tracts to the United States, reserving to the County all mineral rights for a period of fifty years.
In December, 1971, J. W. McTiernan filed five non-competitive oil and gas lease offers covering these tracts with the Bureau of Land Management. The offers were rejected for the reason that the minerals were not yet owned by the United States. McTiernan appealed to the Board of Land Appeals. He contended that the County’s mineral reservations were void, thereby vesting title thereto in the United States as a matter of law, because the County acquired and sold the tracts in the state’s taxing process under which a grantee obtains a fee simple absolute.
The Board acknowledged that McTier-nan had some support for his position but, because deeds to the tracts and government title opinions stated that the mineral rights were reserved to the County, found that title to the minerals was uncertain. On June 27, 1973, it affirmed the Bureau of Land Management’s decision on the grounds “that oil and gas lease offers may properly be rejected in the exercise of administrative discretion when there is a ‘mere uncertainty regarding title to oil and gas deposits.’ ”
On July 16, 1973, McTiernan instituted suit against the Acting Secretary, alleging that the Board’s decision was an abuse of discretion because the evidence before it established that title to the mineral deposits was vested in the United States. The complaint requested that the Board’s decision be reversed and that a writ of mandamus be issued directing the Secretary to accept McTiernan’s lease offers.
McTiernan’s subsequent motion to make the Secretary an additional party defendant was granted and an amended complaint was filed. A second amended complaint was filed on December 5, 1973, listing various oil and gas lessees of Roger Mills County, and the Board of County Commissioners, as defendants. This complaint requested that title to the lands in question be quieted in the United States.
All of the defendants filed motions to dismiss. At the hearing on these motions McTiernan orally amended his pleadings, deleting therefrom his request for mandamus and instead requesting the court to reverse the Board’s decision and direct it to reconsider the lease offers on the basis that the United States owned the minerals.
On April 4, 1974, the court dismissed the action on the grounds (1) the Secretary, acting through the Board, properly exercised his discretion in refusing to grant the leases; (2) that McTiernan lacked standing to sue; and (3) that the action was barred as to all defendants other than the Secretary by the 90-day statute of limitations for filing oil and gas contests.
On appeal McTiernan contends (1) the Board’s decision was improper because it was based on the erroneous finding that title to the mineral rights was uncertain, and (2) title to the mineral rights is vested in the United States as a matter of law because the County’s reservation thereof is void under Oklahoma law.
We do not believe the Secretary’s decision to reject McTiernan’s lease offers was improper. The Mineral Leasing Act, 30 U.S.C. § 181 et seq., gives the Secretary discretionary power to accept or reject oil and gas lease offers. Although a tract, if leased, must go to the first qualified applicant, the Secretary may refuse to issue any lease at all on a given tract. Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). Such is the situation here.
McTiernan contends the Secretary abused this discretion because his decision refusing the offers was not premised on the fact that title to the minerals was vested in the United States under Oklahoma law. Although he proffered some support for this position, the deeds and title opinions which stated that the mineral rights were reserved to the County made such a conclusion questionable. Because the reservations may be valid, and the minerals therefore not subject to the Secretary’s disposition, the decision refusing McTiernan’s offers was proper.
Under these circumstances the only alternative available to the Secretary, and the course McTiernan apparently believes should have been taken, would have been to administratively determine title to the mineral rights. Such a decision, however, can only be made in a quiet title action. Since McTiernan’s oil and gas lease offer does not give him a vested property right, Hannifin v. Morton, 444 F.2d 200, 203 (10th Cir. 1971), he has no standing to question title to the mineral rights. Clark v. Holmes, 31 Okl. 164, 120 P. 642 (1912). We therefore find it unnecessary to consider the effect of Oklahoma law on the mineral rights in question.
Affirmed.
. 30 U.S.C. § 226-2 provides in part: “No action contesting a decision of the Secretary involving any oil and gas lease shall be maintained unless such action is commenced within ninety days after the final decision of the Secretary .
. See, e. g., 30 U.S.C. § 226(a), which provides: “All lands subject to disposition under this chapter which are known or believed to contain oil or gas deposits may be leased by the Secretary.” (Emphasis added).
. 43 CFR § 2091.1 provides in part: “ [Applications . . . must be rejected . when approval ... is prevented by:
(a) Withdrawal or reservation of the lands;
* * * * * *
(e) The fact that for any reason the land has not been made subject ... to the operation of the public land laws.”
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
sc_respondent
|
027
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
STAPLES v. UNITED STATES
No. 92-1441.
Argued November 30, 1993
Decided May 23, 1994
Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, and Souter, JJ., joined. Ginsburg, J., filed an opinion concurring in the judgment, in which O’Connor, J., joined, post, p. 620. Stevens, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 624.
Jennifer L. De Angelis argued the cause for petitioner. With her on the brief was Clark O. Brewster.
James A. Feldman argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Deputy Solicitor General Bryson, and John F. De Pus.
Justice Thomas
delivered the opinion of the Court.
The National Firearms Act makes it unlawful for any person to possess a machinegun that is not properly registered with the Federal Government. Petitioner contends that, to convict him under the Act, the Government should have been required to prove beyond a reasonable doubt that he knew the weapon he possessed had the characteristics that brought it within the statutory definition of a machinegun. We agree and accordingly reverse the judgment of the Court of Appeals.
I
The National Firearms Act (Act), 26 U. S. C. §§5801-5872, imposes strict registration requirements on statutorily defined “firearms.” The Act includes within the term “firearm” a machinegun, § 5845(a)(6), and further defines a machinegun as “any weapon which shoots,... or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger,” § 5845(b). Thus, any fully automatic weapon is a “firearm” within the meaning of the Act. Under the Act, all firearms must be registered in the National Firearms Registration and Transfer Record maintained by the Secretary of the Treasury. § 5841. Section 5861(d) makes it a crime, punishable by up to 10 years in prison, see § 5871, for any person to possess a firearm that is not properly registered.
Upon executing a search warrant at petitioner’s home, local police and agents of the Bureau of Alcohol, Tobacco and Firearms (BATF) recovered, among other things, an AR-15 rifle. The AR-15 is the civilian version of the military’s M-16 rifle, and is, unless modified, a semiautomatic weapon. The M-16, in contrast, is a selective fire rifle that allows the operator, by rotating a selector switch, to choose semiautomatic or automatic fire. Many M-16 parts are interchangeable with those in the AR-15 and can be used to convert the AR-15 into an automatic weapon. No doubt to inhibit such conversions, the AR-15 is manufactured with a metal stop on its receiver that will prevent an M-16 selector switch, if installed, from rotating to the fully automatic position. The metal stop on petitioner’s rifle, however, had been filed away, and the rifle had been assembled with an M-16 selector switch and several other M-16 internal parts, including a hammer, disconnector, and trigger. Suspecting that the AR-15 had been modified to be capable of fully automatic fire, BATF agents seized the weapon. Petitioner subsequently was indicted for unlawful possession of an unregistered machinegun in violation of § 5861(d).
At trial, BATF agents testified that when the AR-15 was tested, it fired more than one shot with a single pull of the trigger. It was undisputed that the weapon was not registered as required by § 5861(d). Petitioner testified that the rifle had never fired automatically when it was in his possession. He insisted that the AR-15 had operated only semiautomatically, and even then imperfectly, often requiring manual ejection of the spent casing and chambering of the next round. • According to petitioner, his alleged ignorance of any automatic firing capability should have shielded him from criminal liability for his failure to register the weapon. He requested the District Court to instruct the jury that, to establish a violation of § 5861(d), the Government must prove beyond a reasonable doubt that the defendant “knew that the gun would fire fully automatically.” 1 App. to Brief for Appellant in No. 91-5033 (CA10), p. 42.
The District Court rejected petitioner’s proposed instruction and instead charged the jury as follows:
“The Government need not prove the defendant knows he’s dealing with a weapon possessing every last characteristic [which subjects it] to the regulation. It would be enough to prove he knows that he is dealing with a dangerous device of a type as would alert one to the likelihood of regulation.” Tr. 465.
Petitioner was convicted and sentenced to five years’ probation and a $5,000 fine.
The Court of Appeals affirmed. Relying on its decision in United States v. Mittleider, 835 F. 2d 769 (CA10 1987), cert. denied, 485 U. S. 980 (1988), the court concluded that the Government need not prove a defendant’s knowledge of a weapon’s physical properties to obtain a conviction under § 5861(d). 971 F. 2d 608, 612-613 (CA10 1992). We granted certiorari, 508 U. S. 939 (1993), to resolve a conflict in the Courts of Appeals concerning the mens rea required under § 5861(d).
II
A
Whether or not § 5861(d) requires proof that a defendant knew of the characteristics of his weapon that made it a “firearm” under the Act is a question of statutory construction; As we observed in Liparota v. United States, 471 U. S. 419 (1985), “[t]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute.” Id., at 424 (citing United States v. Hudson, 7 Cranch 32 (1812)). Thus, we have long recognized that determining the mental state required for commission of a federal crime requires “construction of the statute and... inference of the intent of Congress.” United States v. Balint, 258 U. S. 250, 253 (1922). See also Liparota, supra, at 423.
The language of the statute, the starting place in our inquiry, see Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253-254 (1992), provides little explicit guidance in this case. Section 5861(d) is silent concerning the mens rea required for a violation. It states simply that “[i]t shall be unlawful for any person... to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” 26 U. S. C. § 5861(d). Nevertheless, silence on this point by itself does not necessarily suggest that Congress intended to dispense with a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal. See Balint, supra, at 251 (stating that traditionally, “scienter” was a necessary element in every crime). See also n. 3, infra. On the contrary, we must construe the statute in light of the background rules of the common law, see United States v. United States Gypsum Co., 438 U. S. 422, 436-437 (1978), in which the requirement of some mens rea for a crime is firmly embedded. As we have observed, “[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” Id., at 436 (internal quotation marks omitted). See also Morissette v. United States, 342 U. S. 246, 250 (1952) (“The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil”).
There can be no doubt that this established concept has influenced our interpretation of criminal statutes. Indeed, we have noted that the common-law rule requiring mens rea has been “followed in regard to statutory crimes even where the statutory definition did not in terms include it.” Balint, supra, at 251-252. Relying on the strength of the traditional rule, we have stated that offenses that require no mens rea generally are disfavored, Liparota, supra, at 426, and have suggested that some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime. Cf. United States Gypsum, supra, at 438; Morissette, supra, at 263.
According to the Government, however, the nature and purpose of the Act suggest that the presumption favoring mens rea does not apply to this case. The Government argues that Congress intended the Act to regulate and restrict the circulation of dangerous weapons. Consequently, in the Government’s view, this case fits in a line of precedent concerning what we have termed “public welfare” or “regulatory” offenses, in which we have understood Congress to impose a form of strict criminal liability through statutes that do not require the defendant to know the facts that make his conduct illegal. In construing such statutes, we have inferred from silence that Congress did not intend to require proof of mens rea to establish an offense.
For example, in Balint, we concluded that the Narcotic Act of 1914, which was intended in part to minimize the spread of addictive drugs by criminalizing undocumented sales of certain narcotics, required proof only that the defendant knew that he was selling drugs, not that he knew the specific items he had sold were “narcotics” within the ambit of the statute. See Balint, supra, at 254. Cf. United States v. Dotterweich, 320 U. S. 277, 281 (1943) (stating in dicta that a statute criminalizing the shipment of adulterated or misbranded drugs did not require knowledge that the items were misbranded or adulterated). As we explained in Dotterweich, Balint dealt with “a now familiar type of legislation whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing.” 320 U. S., at 280-281. See also Morissette, supra, at 252-256.
Such public welfare offenses have been created by Congress, and recognized by this Court, in “limited circumstances.” United States Gypsum, supra, at 487. Typically, our cases recognizing such offenses involve statutes that regulate potentially harmful or injurious items. Cf. United States v. International Minerals & Chemical Corp., 402 U. S. 558, 564-565 (1971) (characterizing Balint and similar cases as involving statutes regulating “dangerous or deleterious devices or products or obnoxious waste materials”). In such situations, we have reasoned that as long as a defendant knows that he is dealing with a dangerous device of a character that places him “in responsible relation to a public danger,” Dotterweich, supra, at 281, he should be alerted to the probability of strict regulation, and we have assumed that in such cases Congress intended to place the burden on the defendant to “ascertain at his peril whether [his conduct] comes within the inhibition of the statute.” Balint, supra, at 254. Thus, we essentially have relied on the nature of the statute and the particular character of the items regulated to determine whether congressional silence concerning the mental element of the offense should be interpreted as dispensing with conventional mens rea requirements. See generally Morissette, supra, at 252-260.
B
The Government argues that § 5861(d) defines precisely the sort of regulatory offense described in Balint. In this view, all guns, whether or not they are statutory “firearms,” are dangerous devices that put gun owners on notice that they must determine at their hazard whether their weapons come within the scope of the Act. On this understanding, the District Court’s instruction in this case was correct, because a conviction can rest simply on proof that a defendant knew he possessed a “firearm” in the ordinary sense of the term.
The Government seeks support for its position from our decision in United States v. Freed, 401 U. S. 601 (1971), which involved a prosecution for possession of unregistered grenades under § 5861(d). The defendant knew that the items in his possession were grenades, and we concluded that § 5861(d) did not require the Government to prove the defendant also knew that the grenades were unregistered. Id., at 609. To be sure, in deciding that mens rea was not required with respect to that element of the offense, we suggested that the Act “is a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act.” Ibid. Grenades, we explained, “are highly dangerous offensive weapons, no less dangerous than the narcotics involved in United States v. Balint.” Ibid. But that reasoning provides little support for dispensing with mens rea in this case.
As the Government concedes, Freed did not address the issue presented here. In Freed, we decided only that § 5861(d) does not require proof of knowledge that a firearm is unregistered. The question presented by a defendant who possesses a weapon that is a “firearm” for purposes of the Act, but who knows only that he has a “firearm” in the general sense of the term, was not raised or considered. And our determination that a defendant need not know that his weapon is unregistered suggests no conclusion concerning whether § 5861(d) requires the defendant to know of the features that make his weapon a statutory “firearm”; different elements of the same offense can require different mental states. See Liparota, 471 U. S., at 428, n. 5; United States v. Bailey, 444 U. S. 394, 405-406 (1980). See also W. La-Fave & A. Scott, Handbook on Criminal Law 194-195 (1972). Moreover, our analysis in Freed likening the Act to the public welfare statute in Balint rested entirely on the assumption that the defendant knew that he was dealing with hand grenades — that is, that he knew he possessed a particularly dangerous type of weapon (one within the statutory definition of a “firearm”), possession of which was not entirely “innocent” in and of itself. 401 U. S., at 609. The predicate for that analysis is eliminated when, as in this case, the very question to be decided is whether the defendant must know of the particular characteristics that make his weapon a statutory firearm.
Notwithstanding these distinctions, the Government urges that Freed’s logic applies because guns, no less than grenades, are highly dangerous devices that should alert their owners to the probability of regulation. But the gap between Freed and this case is too wide to bridge. In glossing over the distinction between grenades and guns, the. Government ignores the particular care we have taken to avoid construing a statute to dispense with mens rea where doing so would “criminalize a broad range of apparently innocent conduct.” Liparota, 471 U. S., at 426. In Liparota, we considered a statute that made unlawful the unauthorized acquisition or possession of food stamps. We determined that the statute required proof that the defendant knew his possession of food stamps was unauthorized, largely because dispensing with such a mens rea requirement would have resulted in reading the statute to outlaw a number of apparently innocent acts. Ibid. Our conclusion that the statute should not be treated as defining a public welfare offense rested on the commonsense distinction that a “food stamp can hardly be compared to a hand grenade.” Id., at 433.
Neither, in our view, can all guns be compared to hand grenades. Although the contrast is certainly not as stark as that presented in Liparota, the fact remains that there is a long tradition of widespread lawful gun ownership by private individuals in this country. Such a tradition did not apply to the possession of hand grenades in Freed or to the selling of dangerous drugs that we considered in Balint. See also International Minerals, 402 U. S., at 563-565; Balint, 258 U. S., at 254. In fact, in Freed we construed § 5861(d) under the assumption that “one would hardly be surprised to learn that possession of hand grenades is not an innocent act.” Freed, supra, at 609. Here, the Government essentially suggests that we should interpret the section under the altogether different assumption that “one would hardly be surprised to learn that owning a gun is not an innocent act.” That proposition is simply not supported by common experience. Guns in general are not “deleterious devices or products or obnoxious waste materials,” International Minerals, supra, at 565, that put their owners on notice that they stand “in responsible relation to a public danger,” Dotterweich, 320 U. S., at 281.
The Government protests that guns, unlike food stamps, but like grenades and narcotics, are potentially harmful devices. Under this view, it seems that Liparota’s concern for criminalizing ostensibly innocuous conduct is inapplicable whenever an item is sufficiently dangerous — that is, dangerousness alone should alert an individual to probable regulation and justify treating a statute that regulates the dangerous device as dispensing with mens rea. But that an item is “dangerous,” in some general sense, does not necessarily suggest, as the Government seems to assume, that it is not also entirely innocent. Even dangerous items can, in some cases, be so commonplace and generally available that we would not consider them to alert individuals to the likelihood of strict regulation. As suggested above, despite their potential for harm, guns generally can be owned in perfect innocence. Of course, we might surely classify certain categories of guns — no doubt including the machineguns, sawed-off shotguns, and artillery pieces that Congress has subjected to regulation — as items the ownership of which would have the same quasi-suspect character we attributed to owning hand grenades in Freed. But precisely because guns falling outside those categories traditionally have been widely accepted as lawful possessions, their destructive potential, while perhaps even greater than that of some items we would classify along with narcotics and hand grenades, cannot be said to put gun owners sufficiently on notice of the likelihood of regulation to justify interpreting § 5861(d) as not requiring proof of knowledge of a weapon’s characteristics.
On a slightly different tack, the Government suggests that guns are subject to an array of regulations at the federal, state, and local levels that put gun owners on notice that they must determine the characteristics of their weapons and comply with all legal requirements. But regulation in itself is not sufficient to place gun ownership in the category of the sale of narcotics in Balint. The food stamps at issue in Liparota were subject to comprehensive regulations, yet we did not understand the statute there to dispense with a mens rea requirement. Moreover, despite the overlay of legal restrictions on gun ownership, we question whether regulations on guns are sufficiently intrusive that they im-. pinge upon the common experience that owning a gun is usually licit and blameless conduct. Roughly 50 percent of American homes contain at least one firearm of some sort, and in the vast majority of States, buying a shotgun or rifle is a simple transaction that would not alert a person to regulation any more than would buying a car.
If we were to accept as a general rule the Government’s suggestion that dangerous and regulated items place their owners under an obligation to inquire at their peril into compliance with regulations, we would undoubtedly reach some untoward results. Automobiles, for example, might also be termed “dangerous” devices and are highly regulated at both the state and federal levels. Congress might see fit to criminalize the violation of certain regulations concerning automobiles, and thus might make it a crime to operate a vehicle without a properly functioning emission control system. But we probably would hesitate to conclude on the basis of silence that Congress intended a prison term to apply to a car owner whose vehicle’s emissions levels, wholly unbeknownst to him, began to exceed legal limits between regular inspection dates.
Here, there can be little doubt that, as in Liparota, the Government’s construction of the statute potentially would impose criminal sanctions on a class of persons whose mental state — ignorance of the characteristics of weapons in their possession — makes their actions entirely innocent. The Government does not dispute the contention that virtually any semiautomatic weapon may be converted, either by internal modification or, in some cases, simply by wear and tear, into a machinegun within the meaning of the Act. Cf. United States v. Anderson, 885 F. 2d 1248, 1251, 1253-1254 (CA5 1989) (en banc). Such a gun may give no externally visible indication that it is fully automatic. See United States v. Herbert, 698 F. 2d 981, 986 (CA9), cert. denied, 464 U. S. 821 (1983). But in the Government’s view, any person who has purchased what he believes to be a semiautomatic rifle or handgun, or who simply has inherited a gun from a relative and left it untouched in an attic or basement, can be subject to imprisonment, despite absolute ignorance of the gun’s firing capabilities, if the gun turns out to be an automatic.
We concur in the Fifth Circuit’s conclusion on this point: “It is unthinkable to us that Congress intended to subject such law-abiding, well-intentioned citizens to a possible ten-year term of imprisonment if... what they genuinely and reasonably believed was a conventional semi-automatic [weapon] turns out to have worn down into or been secretly modified to be a fully automatic weapon.” Anderson, supra, at 1254. As we noted in Morissette, the “purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution’s path to conviction.” 342 U. S., at 263. We are reluctant to impute that purpose to Congress where, as here, it would mean easing the path to convicting persons whose conduct would not even alert them to the probability of strict regulation in the form of a statute such as § 5861(d).
C
The potentially harsh penalty attached to violation of § 5861(d) — up to 10 years’ imprisonment — confirms our reading of the Act. Historically, the penalty imposed under a statute has been a significant consideration in determining whether the statute should be construed as dispensing with mens rea. Certainly, the cases that first defined the concept of the public welfare offense almost uniformly involved statutes that provided for only light penalties such as fines or short jail sentences, not imprisonment in the state penitentiary. See, e. g., Commonwealth v. Raymond, 97 Mass. 567 (1867) (fine of up to $200 or six months in jail, or both); Commonwealth v. Fatten, 91 Mass. 489 (1864) (fine); People v.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_r_state
|
1
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
CHESSMAN v. PEOPLE et al.
No. 13451.
United States Court of Appeals Ninth Circuit.
May 28, 1953.
Rehearing Denied June 30, 1953.
Caryl Chessman, in pro. per.
Edmund G. Brown, Atty. Gen., and Clarence A. Linn, Asst. Atty. Gen., of Cal., for appellee.
Before DENMAN, Chief Judge, and ORR and POPE, Circuit Judges.
DENMAN, Chief Judge.
This is an appeal from an order of the United States District Court for the Northern District of California, Southern Division, Louis E. Goodman, Judge, denying a petition for a writ of habeas corpus.
The question presented is whether the district court erred in denying the application for the writ upon the ground that the state courts had adequately considered and disposed of the contentions made in the application.
Caryl Chessman was convicted in the California courts on 18 felony counts, including two for which the death penalty was imposed. The judgments were affirmed on appeal. People v. Chessman, 38 Cal.2d 166, 238 P.2d 1001. Simultaneously with the appeal, a petition for a writ of habeas corpus was filed with the state court. This petition was denied by a memorandum order and the United States Supreme Court denied certiorari, Chessman v. California, 343 U.S. 915, 72 S.Ct. 650.
Chessman’s petition is extremely lengthy and cites many instances in which he claims he was deprived of his rights under the Uni led States Constitution. These may be summarized as follows: (1) that Chessman was forced to go to trial unprepared; (2) that confessions obtained by force and intimidation and promises of partial immunity were used in evidence against him; (3) that said confessions were treated as “admissions” by the court and prosecution with the result that the jury was authorized to base a verdict of guilty upon these involuntary statements; (4) that the trial resulting in Chessman’s conviction was unfair; (5) that § 209 of the California Penal Code, under which the death penalties were imposed, is unconstitutional as applied to Chessman; (6) that petitioner was placed in double jeopardy; and (7) that due to extrinsic fraud practiced by the prosecuting attorney and the trial judge the transcript of record forwarded upon appeal to the state supreme court was incomplete and further that Chessman was not permitted to show that important parts of the proceedings were missing or were incorrectly recorded.
(1) Chessman’s contention that he was forced to go to trial unprepared was adequately disposed of by the state courts.
Chessman contends that he was forced to go to trial unprepared, that he had no attorney and that prison rules did not permit him access to law books or a chance to interview witnesses. This point was adequately considered and disposed of by the California Supreme Court in its opinion in Chessman’s appeal, People v. Chessman, 38 Cal.2d 166, 172-174, 238 P.2d 1001. We have examined the determination of the California court and find no fault therein. We therefore accept the State court’s determination. Brown v. Allen, 344 U.S. 443, 507-508, 73 S.Ct. 397, 437. (Opinion of Justice Frankfurter).
(2) Chessman’s contention that confessions obtained by force and intimidation and promises of partial immunity were used in evidence against him was adequately disposed of by the state courts.
As is shown by the opinion of the California Supreme Court in Chessman’s appeal, People v. Chessman, supra, 38 Cal.2d at pages 178-182, 238 P.2d 1001, the trial court in the first instance and the jury both decided the issue of the voluntariness of the confession against Chessman. While Justice Frankfurter stated that “the question whether established primary facts underlying a confession prove that the confession was coerced or voluntary cannot rest o,n the State decision” (citing Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224; Stroble v. California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872), Brown v. Allen, 344 U.S. 443, 507, 73 S.Ct. 397, 437, 446, where, as here, the evidence as to these primary facts is conflicting the determination of the triers of fact will be accepted unless “it is so lacking in support in the evidence that to give it effect would work fhat fundamental unfairness which is at war with due process.” Lisenba v. People of State of California, 314 U.S. 219, 238, 62 S.Ct. 280, 291, 86 L.Ed. 166. The same procedures for determining the voluntariness of the confession were used in this case as were used in the Lisenba case, hence there is nothing for the federal court to consider.
(3) Chessman’s contention that the confessions were treated as admissions with the result that the jury was authorized to base a verdict of guilty upon involuntary statements is wholly without merit.
As is shown above, the statements or confessions of Chessman were found to be voluntary and that finding is controlling here. Hence it makes no difference whether the statements were labeled “confessions” or “admissions”. On this issue Chessman has failed to make out a prima facie case. Brown v. Allen, supra, 344 U.S. at page 502, 73 S.Ct. 397.
(4) Chessman’s contention that the trial resulting in 'his conviction was unfair was adequately disposed of by the state court.
Chessman’s contention that the trial was unfair is based upon the following allegations: that 18 felony counts were consolidated for one trial, that he was required to remain at the counsel table while interviewing witnesses, that he was denied a daily transcript of record while the prosecutor was able to obtain one, and that the court refused to allow an attorney as well as Chessman to argue to the jury. These contentions were .all considered by the state supreme court, People v. Chessman, supra (consolidation of counts, 38 Cal.2d at page 175, 238 P.2d 1006, requirement that Chessman remain at counsel table, 38 Cal.2d at page 176, 238 P.2d at page 1007, denial of Chessman’s motion for daily transcript, 38 Cal.2d at pages 176-177, 238 P.2d 1007-1008, and refusal to allow an attorney as well as Chessman to argue to the jury, 38 Cal.2d at pages 188-189, 238 P.2d at pages 1014-1015.
(5) Chessman’s contention that § 209 of the California Penal Code is unconstitutional as applied to him is without merit.
Chessman was charged with and convicted of kidnapping for the purpose of robbery in four counts. Where the kidnappee suffers bodily harm, the penalty may be death under Calif.Pen.Code, § 209. Chessman has been found guilty of holding up couples in parked cars, forcing the woman to go a short distance away from the car, forcefully committing an act of a sexual nature, and robbing the woman while she was removed from the car. The California Supreme Court, in a companion case involving his co-defendant, decided that in-such circumstances § 209 was applicable, People v. Knowles, 35 Cal.2d 175, 217 P.2d 1. This is a matter of statutory construction and presents no constitutional issue.
(6) Chessman’s contention that he was placed in double jeopardy is without merit.
It is true that Chessman was convicted of the crime of rape when the offense was an integral part of the crime of kidnapping and imposing bodily harm. It is also true that Calif.Pen.Code § 654 forbids punishing one separately for acts which are a part of another crime for which that person is also being punished. However, as is pointed out by the California Supreme Court, “since defendant is subject to two validly imposed death sentences, no purpose would be served by reversal of other judgments of conviction.” People v. Chessman, 38 Cal.2d at page 193, 238 P.2d at page 1017.
(7) Chessman’s contention that due to extrinsic fraud by the trial judge and the prosecutor, the transcript of record forwarded upon appeal to the state supreme court was incomplete and that he was not permitted to show that important parts of the proceeding were missing or incorrectly recorded presents no issue upon which he is entitled to a hearing.
Chessman’s contention that the transcript of record on appeal was incomplete and inaccurate is based upon the following allegations: That it was prepared by a method unknown to the law (a question of state law, determined adversely to him, Id.) ; and that extrinsic fraud was employed both in the preparation of the record and in getting the California Supreme Court to accept it for use on appeal. This latter charge is the only one which Chessman can urge in the federal courts.
After the judgment of conviction was entered, the court proceeded without Chessman’s participating to prepare the record on appeal. The reporter of the trial proceedings had died without transcribing his shorthand notes and the transcript was made up by another reporter aided by other testimony. He contends that collusion between the trial judge, the prosecuting attorney and the transcribing reporter prevented a true record — one which would have shown ilie tiulli of his oilier allegations — from being presented to the California Supreme Court. lie claims that the Fourteenth Amendment was violated in that he was deprived of his right of personal participation in the proceeding in which the record was settled, and that the prosecuting attorney, who testified in the preparation of the record, perjured himself.
There is no merit in the contention that the due process provisions of the Fourteenth Amendment were violated. The Constitution gives no right to appear in person or by counsel on a criminal appeal. Whether to grant an appeal, and the terms upon which it will be granted are purely matters of local law over which federal courts have no control. See Andrews v. Swartz, 156 U.S. 272, 274-275, 15 S.Ct. 389, 391, 39 L.Ed. 422, where the Court said:
“The statute of New Jersey eniitled ‘An act regulating proceedings in criminal cases,’ approved March 27, 1874 (Revision [of 1877], p. 266), which declares that writs of error in criminal cases punishable with death shall be considered writs of grace, and not writs of right (Id. p. 283), was brought forward from an act passed March 6, 1795. [Laws of New Jersey] (Revision 1821, pp. 184, 186, § 13).
“The contention of appellant is that such a statute is in violation of the constitution of the United States. If it were necessary, upon this appeal, to consider that question, we would only repeat what was said in McKane v. Durston, 153 U.S. 684, 687, 14 S.Ct. 913 [38 L.Ed. 867]: ‘An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law, and is not now, a necessary element of due process of law. It is wholly within the discretion of the state to allow or not to allow such a review.’ ‘It is therefore clear that the right of appeal may be accorded by the state to the accused upon such terms as, in its wisdom, may be proper;’ and ‘whether an appeal should be allowed, and, if so, under what circumstances or on what conditions, are matters for each state to' determine for itself.’ ”
And that there can be no denial of due process in the procedure used to settle the record on appeal, see Dowdell v. United States, 221 U.S. 325, 328-329, 31 S.Ct. 590, 55 L.Ed. 753.
The judgment is affirmed.
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_const2
|
0
|
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.
Robert EGGENSCHWILER, Plaintiff-Appellant, v. MIDWESTERN MOTOR LODGE CORPORATION, Defendant-Appellee.
No. 13114.
United States Court of Appeals Seventh Circuit.
Feb. 2, 1961.
Robert H. Duffy, Paul O. Hertwig, Terre Haute, Ind., for appellant.
Jerdie D. Lewis, Terre Haute, Ind., Lewis & Lewis, Terre Haute, Ind., of counsel, for appellee.
Before HASTINGS, Chief Judge, and DUFFY and ENOCH, Circuit Judges.
DUFFY, Circuit Judge.
This is a suit for personal injuries brought by plaintiff who was a guest of a motor hotel, against the innkeeper. Jurisdiction is based on diversity of citizenship. Negligence was charged based upon the construction and maintenance of the bathing facilities of the unit rented by plaintiff.
On July 31, 1958, plaintiff engaged a room for himself and family at the Rit:iPlaza Motel operated by defendant. The bathtub furnished by defendant was enclosed by glass doors or panels glazed with y$ inch glass. The glass enclosure was for use when guests took a shower bath. An oval-shaped bath mat 13 inches wide and 20 inches long was furnished. Plaintiff prepared to take a shower bath. After disrobing, he adjusted the shower water to the proper temperature, entered the tub and stood on the mat which was at one end of the tub, under the shower-head. After getting his body wet, he stepped back off the mat and rubbed soap on his body. He stepped forward to rinse off the soap and in doing so, his foot slipped. He reached to his right for support and his hand encountered the glass panel. The panel shattered and plaintiff fell with his arm extended through the broken glass. As he fell, his arm was cut severely by the broken glass remaining in the frame.
Plaintiff urged several grounds of negligence including the allegation that the glass in the panel which was % inch in thickness was too thin to withstand the pressures reasonably to have been anticipated, and was lighter glass than the %2 inch glass customarily used in the tub enclosure industry.
At the close of plaintiff’s case, the Court granted defendant’s motion for a directed verdict. The Court stated plaintiff was guilty of contributory negligence as a matter of law, and that it did not reach the question of defendant’s alleged negligence.
Under the facts of this case, and under Indiana law, we hold the question of contributory negligence of the plaintiff was clearly a question of fact for the jury. It was error for the Court to have directed a verdict in favor of the defendant.
Under Indiana law, the burden of proof is on the defendant to establish the contributory negligence of a plaintiff. The limitation on the power of a trial court to direct a verdict for defendant on the issue of contributory negligence is the same as would apply to the direction of a verdict for the plaintiff on the issue of defendant’s negligence. Heiny v. Pennsylvania R. R., 221 Ind. 367, 47 N.E.2d 145.
Under Indiana law, as elsewhere, the question of contributory negligence is ordinarily one for the jury. This is so when reasonable men could fairly draw different inferences from undisputed facts. Larkins v. Kohlmeyer, 229 Ind. 391, 395, 98 N.E.2d 896, 898; Gamble v. Lewis, 227 Ind. 455, 85 N.E.2d 629; Allen v. Pennsylvania R. R., 7 Cir., 120 F.2d 63; Hatmaker v. Elgin, J. & E. R. R., 126 Ind.App. 566, 133 N.E.2d 86.
In determining whether a peremptory instruction should be given, the court must accept as true all facts which the evidence tends to prove and draw against the party requesting such instruction, all inferences which the jury might reasonably draw. Callahan v. New York Cent. R. R., 125 Ind.App. 631, 635, 125 N.E.2d 263, 265; Whitaker v. Borntrager, 233 Ind. 678, 122 N.E.2d 734; Allen v. Pennsylvania R. R., 7 Cir., 120 F.2d 63; Reno Sales Co. v. Pritchard Industries Inc., 7 Cir., 178 F.2d 279.
From the comments made by the trial judge, it is apparent that he regarded the plaintiff was guilty of contributory negligence in stepping off the mat and standing on the porcelain surface of the tub. The Indiana Supreme Court had a somewhat similar situation in Lincoln Operating Co. v. Gillis, 232 Ind. 551, 114 N.E.2d 873. This was a bathtub-fall case and defendant there relied on a Florida case [Miller v. Shull, Fla., 48 So.2d 521] where the plaintiff had been found contributorily negligent as a matter of law because she should have known “that a small amount of water in * * * a bathtub creates a slippery condition.” The Indiana Supreme Court stated, 114 N.E.2d at page 876, “We are not impressed with the reasoning of this case for several reasons. While it is a matter of common experience that water makes an enamel or porcelain tub more slippery than a dry tub, it is also a matter of common experience that millions of people take baths in such tubs without ever falling or injuring themselves. It is also a matter of common experience that wet soap acts as a lubricant and makes a wet bathtub much more slippery than water alone.” The Indiana Supreme Court held the trial court did not err in refusing to direct a verdict for defendant. A verdict and judgment for the plaintiff were sustained.
Considering the evidence in the light most favorable to the plaintiff, we are convinced that reasonable men could conclude that the plaintiff was not guilty of contributory negligence. The judgment for defendant is reversed, and the case is remanded for a new trial.
Reversed and remanded for a new trial.
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:
|
songer_appel2_7_5
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the 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 which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Kenneth FARLEY, Plaintiff-Appellant, v. Daniel E. HENDERSON, Defendant-Appellee. Arnold K. RILEY; Carolyn B. Riley; Tamara Riley; Robert J. Wright, Plaintiffs-Appellants, v. Daniel E. HENDERSON; aka Dan Harris; James Lowell; Jerry Borsch; Tom Honte; Randy Jones; Mervin Lakin; Sandra Ramsey; Board of Medical Examiners, Defendants-Appellees.
Nos. 87-1777, 87-2275.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 14, 1989.
Decided May 17, 1989.
Kenneth Farley, pro se.
Robert J. Wright, Noti, Or., pro se and for plaintiffs-appellants.
Jane E. Beach, Jones, Skelton & Hoehuli, Phoenix, Ariz., for defendants-appellees.
Before POOLE, FERGUSON and WIGGINS, Circuit Judges.
PER CURIAM:
Appellants in these two consolidated actions are members of the Holy Spirit of God Church.' Both actions raise the identical issue: Whether the arrest of “psychic surgeon” Gary Magno by Phoenix police officer Daniel Henderson deprived appellants of their first amendment free exercise rights. We conclude that it did not and affirm the dismissal of both actions.
Magno professes to be a “psychic surgeon.” Officer Henderson engaged in an undercover police investigation of Magno. As a result of information gathered during this investigation, Henderson obtained a warrant and arrested Magno for medical fraud under an Arizona fraud statute, Ariz. Rev.Stat.Ann § 13-2310, on August 9, 1986.
Appellants Arnold, Carolyn, and Tamara Riley and Robert Wright paid the bail monies necessary to secure the release of Magno, his wife, and assistants who were arrested with Magno. The Rileys and Wright filed a pro se complaint in federal court under 42 U.S.C. § 1983 alleging that their first amendment right to the free exercise of their religion was violated by the investigation and arrest of Magno. Named as defendants are: Henderson; James Lowell, a member of the Arizona Chapter of the National Council Against Health Fraud; Jerry Borsch, Director of Investigations for the Arizona Board of Medical Directors; Tom Honte, a Scottsdale police detective; Randy Jones, a private citizen; Mervin Lakin, M.D.; Sandra Ramsey, a Special Agent of the Arizona State Attorney General’s Office; and the Arizona Board of Medical Examiners. Appellant Farley also filed a pro se action against Henderson alleging a similar claim under the first amendment.
The same attorney represented appellees in both actions. Similar motions to dismiss or alternatively for summary judgment were filed in both actions. Both motions were granted. Farley’s action was dismissed on February 9, 1987, and the action filed by the Rileys and Wright was dismissed on May 15, 1987. In a separate order filed on June 18, 1987, the district court granted the motion filed by Henderson and Jones for attorneys’ fees and costs against the Rileys and Wright.
Appellants appeal the dismissal of their first amendment claims. The Rileys and Wright also appeal the award of attorneys’ fees. Appellees request attorneys’ fees and costs on appeal.
First Amendment
We have jurisdiction to consider the merits of appellants’ claims under 28 U.S. C. § 1291 (1982). Because matters outside the pleading were presented to and not excluded by the district judges in both actions, we treat appellees’ motions as motions for summary judgment under Fed.R. Civ.P. 56. Fed.R.Civ.P. 12(b). We review a district court’s grant of a motion for summary judgment de novo. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 629 (9th Cir.1987). Summary judgment is appropriate where there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); T.W. Elec. Serv., 809 F.2d at 630.
Appellants contend that Henderson’s arrest of Magno deprived them of their first amendment rights to exercise freely their religious beliefs. Both complaints allege the deprivation of the right to experience spiritual surgery in furtherance of their religious belief in the power of the Holy Spirit.
In order to succeed on their claims under section 1983, appellants must demonstrate that a person acting under color of state law, custom, or practice has deprived them of a federally protected right. Escamilla v. City of Santa Ana, 796 F.2d 266, 268 (9th Cir.1986). “The protection that the First Amendment provides to ‘legitimate claims to the free exercise of religion,’ does not extend to conduct that a state has validly proscribed.” Employment Div., Dept. of Human Res. v. Smith, 485 U.S. 660, 108 S.Ct. 1444, 1451, 99 L.Ed.2d 753 (1988) (emphasis in original) (quoting Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136, 107 S.Ct. 1046, 1050, 94 L.Ed.2d 190 (1987)). Because Magno was arrested under a valid Arizona statute, first amendment free exercise protection is, as a matter of law, unavailable to appellants.
Appellants do not appear to challenge the validity of the Arizona fraud statute. They do argue that psychic surgery is not a fraud. This latter argument may be interpreted as support for the contention that because Magno was not actually guilty of fraud, they are not precluded from relying on the free exercise clause. Whether or not psychic surgery is a valid means of healing a diseased individual or whether Magno is ultimately convicted of the fraud charge is irrelevant to resolution of appellants’ claims. Appellants’ claims were therefore properly dismissed.
ATTORNEYS’ FEES
The Rileys and Wright contend that the award of attorneys’ fees against them was improperly granted. Because no notice of appeal from the order granting attorneys’ fees was filed, we lack jurisdiction to review the award. Culinary & Serv. Employees Union, Local 555 v. Hawaii Employee Benefit Admin., 688 F.2d 1228, 1282 (9th Cir.1982) (“Where no notice of appeal from a post-judgment order awarding attorneys’ fees is filed, the court of appeals lacks jurisdiction to review the order.”). We decline the request made by Henderson and Jones for attorneys’ fees on appeal.
AFFIRMED.
. Appellants allege that Magno is a practitioner of "spiritual surgery." Otherwise known as "psychic healers" or "psychic surgeons,” such individuals allegedly use psychic powers to remove tumors and other diseased tissues from patients without making any surgical incision or using any surgical equipment.
. The complaint also alleged claims under 42 U.S.C. § 1985(3), 18 U.S.C. § 241, and an antitrust claim. Appellants do not appeal the dismissal of these claims.
. The complaint also alleged claims under 42 U.S.C. § 1986 and 18 U.S.C. § 241. Farley does not appeal the dismissal of his claim under 18 U.S.C. § 241. He is precluded from bringing a claim under 42 U.S.C. § 1986 because he has failed to allege a claim under 42 U.S.C. § 1985. See Browder v. Tipton, 630 F.2d 1149, 1155 (6th Cir.1980) (section 1986 claim is dependent upon predicate section 1985 claim).
. Attached to the complaint filed by the Rileys and Wright is the affidavit of clinical psychologist Lee Fulos. Pulos states that he has studied the "psychic surgeons” and has personally witnessed over 8000 “psychic operations” from within several feet of the operations. He states that only between 2-5% of the operations contain any fraud, and those that do usually involve lesser known healers. He speaks of spiritual surgery as being a "real valid phenomena” that "has helped thousands ... from chronic illness.”
. To hold otherwise would discourage the enforcement of laws in situations in which the conduct at issue is even remotely connected to a religious belief.
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)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_polquest
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to rule on the merits of the case because it was considered to be a 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".
UNITED STATES of America, Plaintiff-Appellee, v. Rosalba SOLIVAN, Defendant-Appellant.
No. 90-5500.
United States Court of Appeals, Sixth Circuit.
Argued Jan. 24, 1991.
Decided July 5, 1991.
Rehearing Denied Aug. 6, 1991.
Louis DeFalaise, U.S. Atty., Lexington, Ky., Frederick A. Stine, Y, Asst. U.S. Atty., Covington, Ky., for plaintiff-appellee.
Robert Alan Rosenblatt, Miami, Fla., for defendant-appellant.
Before KEITH and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.
KEITH, Circuit Judge.
Defendant-appellant, Rosalba Solivan (“defendant”) appeals from her March 28, 1990, judgment and sentence resulting from the sale of cocaine. For the following reasons, we REVERSE.
I.
A.
Terry and Lorraine Brown (collectively “the Browns”) became Drug Enforcement Administration (“DEA”) informants in July 1988, subsequent to Terry Brown’s arrest for the purchase of one kilogram of cocaine from Pepe (defendant’s former boyfriend) and defendant on March 8, 1988.
On February 13, 1989, while in custody, the Browns began making a series of DEA controlled, tape recorded, telephone calls to defendant. The first call concerned the delivery of three to five kilograms of cocaine to northern Kentucky and the price of the cocaine. During a subsequent telephone conversation, defendant informed the Browns that the price would be $19,500 per kilogram of cocaine. The series of recorded telephone conversations, which took place over the following weeks, detailed defendant’s involvement in the narcotics industry, the problems she encountered locating cocaine, and how she planned to fill the Browns’ order for four kilograms of cocaine.
On March 19, 1989, defendant flew to Cincinnati from Miami to complete the transaction. The Browns met her at the airport and transported her to the Holiday Inn in Covington, Kentucky, where they rented a room. Shortly thereafter, Francisco Gomez (“Gomez”) arrived at the hotel. Gomez had driven the cocaine from the New York City area to Covington. Terry Brown, Gomez and defendant went outside to Gomez’ vehicle, retrieved the four kilograms of cocaine, brought it back to the hotel room, and examined it. DEA agents then entered the hotel room and arrested Gomez and defendant.
B.
On April 12, 1989, defendant and Gomez were indicted on seven counts, including conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846; attempt to distribute cocaine, in violation of 21 U.S.C. § 846; interstate travel to facilitate narcotics activity, in violation of 18 U.S.C. § 1952; and use of a telephone to facilitate narcotics activity, in violation of 21 U.S.C. § 843(b). Gomez pled guilty to all charges on September 11, 1989. Defendant pled not guilty. Her trial commenced September 12, 1989, and concluded September 19, 1989.
At trial, during closing argument, the Assistant United States Attorney (“Assistant U.S. Attorney” or the “prosecutor”) made the following remarks:
[Assistant U.S. Attorney]: What you’re listening to is a wholesale distributor of narcotics, cocaine discuss her business affairs and complain about her busy schedule, the lack of good product and the trouble she’s having getting this stuff up here now. And I’d submit to you, folks, that she’s been caught now. And I’m asking you to tell her and all of the other drug dealers like her — (defense counsel’s objection and Court’s response omitted) — [t]hat we don’t want that stuff in Northern Kentucky and that anybody who brings that stuff in Northern Kentucky and...
The Court: Don’t continue the comment until I rule on it.
[Defense counsel]: Objection.
[Assistant U.S. Attorney]: Oh, okay. I’m sorry.
The Court: Ready to break off?
[Assistant U.S. Attorney]: Just that, ladies and gentlemen....
Transcript at 767-68 (emphasis added). The court did not immediately admonish the jury, but instead declared a recess. Out of the presence of the jury, the court allowed defense counsel to state his objection to the prosecutor’s comment on closing. Defense counsel at that time also moved for a mistrial based on the prosecutor’s highly prejudicial comments. The court sustained the objection but denied the motion for a mistrial. The court stated that it would admonish the jury when court resumed, which it did, stating:
At the conclusion... certain remarks were made in the closing argument of the prosecutor to which the Court has sustained an objection and will admonish you not to consider them. Do not consider any urgings by the prosecutor to send messages to anybody. We’re not here to send messages to anybody. We’re here to try this defendant’s case.
It’s our duty to try — try this defendant’s case based on the evidence in this case and the law in this case and not with concern about anybody else. The Court reiterates its instructions that if the evidence establishes beyond a reasonable doubt that the defendant is guilty of the offense as charged or any of them its your duty to convict. If the United States fails to meet that burden, it’s your duty to acquit. Don’t worry about anybody else or send anybody any messages. We’re concerned with this one case to try [defendant] on the evidence in it.
Transcript at 768.
The jury returned a verdict of guilty on all counts. On March 28, 1990, defendant was sentenced to 151-months imprisonment. Defendant filed a timely notice of appeal on March 28, 1990.
II.
A.
On appeal, defendant argues that, during closing argument, the prosecutor made improper and prejudicial statements which deprived her of a fair trial. Defendant contends that the prosecutor’s argument constitutes reversible error because the resulting prejudice was not cured by the district court’s subsequent admonition to the jury. The prosecutor’s remarks, defendant argues, were prejudicial because they improperly appealed to the community conscience and interest of the jurors in ridding society of drug dealers. The prosecutor counters that its comments, if improper, were cured by the district court’s admonition.
B.
We review the district court’s denial of defendant’s motion for a mistrial for abuse of discretion. See Illinois v. Somerville, 410 U.S. 458, 462-64, 93 S.Ct. 1066, 1069-70, 35 L.Ed.2d 425 (1973); United States v. Cordell, 924 F.2d 614, 617 (6th Cir.1991) (citing United States v. Levy, 904 F.2d 1026, 1030 (6th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 974, 112 L.Ed.2d 1060 (1991)).
In the case before us, the question of whether the district court abused its discretion in turn depends on whether the conduct of the prosecutor constitutes reversible error. Cf. United States v. Alloway, 397 F.2d 105, 113 (6th Cir.1968) (no abuse of discretion shown in denying motion for a mistrial where prosecutor's argument was not found to warrant reversal). In making this determination, we consider whether there was misconduct. If there was misconduct, we must determine whether the misconduct was harmless. See United States v. Bess, 593 F.2d 749, 756-57 (6th Cir.1979) (determining first that the conduct complained of, the prosecutor’s statement of personal belief of the defendant’s guilt, constituted error and then determining that such conduct constituted reversible error).
Thus, this Court must determine whether defendant’s right to a fair trial was prejudiced by improper prosecutorial conduct. There are instances where a “single misstep” on the part of the prosecutor may be so destructive of the right to a fair trial that reversal is mandated. See Pierce v. United States, 86 F.2d 949 (6th Cir.1936). We realize that such instances may be rare, but we believe this case exemplifies a single misstep so destructive to defendant’s right to a fair trial that it constitutes reversible error.
C.
1.
This Circuit has many times expressed itself fully on the issue of misconduct of government counsel in the prosecution of criminal cases. Our decisions in this area have recognized the standard of conduct imposed upon the prosecution of federal crimes as enunciated in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). See, e.g., Bess, 593 F.2d at 756-57. In Berger, the Supreme Court considered an instance of prosecutorial misconduct involving both improper cross examination of witnesses and improper argument to the jury in a prosecution for conspiracy to utter counterfeit notes. Berger, 295 U.S. at 79-80, 55 S.Ct. at 629-30. The Supreme Court found that the prosecutor’s conduct rose to the level of prejudicial misconduct because his argument to the jury was undignified and intemperate. The argument was found to have contained improper insinuations and assertions calculated to mislead the jury. Id. at 85, 55 S.Ct. at 632. Because the jury will normally place great confidence in the faithful execution of the obligations of a prosecuting attorney, improper insinuations or suggestions are apt to carry more weight against a defendant than such statements by witnesses. The Supreme Court stated the following in asserting that the conduct of government prosecutors must meet a high standard:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Id. at 88-89, 55 S.Ct. at 633.
Thus, it is the duty of the prosecutor to advance the government’s cause with force and persuasiveness. However, this duty encompasses concerns beyond mere advocacy. The prosecutor has a concomitant duty not to derogate from a fair and impartial criminal proceeding. Stated in slightly different terms, the government’s conduct in prosecuting the defendant may determine whether or not a defendant is accorded his or her constitutional right to a fair trial. Cf. Viereck v. United States, 318 U.S. 236, 247-48, 63 S.Ct. 561, 566, 87 L.Ed. 734 (1943) (finding that the prosecutor’s conduct prejudiced the defendant’s right to a fair trial and was “offensive to the dignity and good order with which all proceedings in court should be conducted” and quoting language in Berger, 295 U.S. at 88, 55 S.Ct. at 633, which stressed that the role of the prosecutor in a criminal case is to see that justice is done); Bess, 593 F.2d at 755 (stating that prosecutors carry a special aura of legitimacy).
In sum, the principles set forth in Berger forbid the government’s injection of improper or prejudicial material that deprives an accused of his or her right to a fair trial. For instance, the government prosecutor may not express to the jury his or her personal knowledge of the guilt of the accused, Bess, 593 F.2d at 754, or bring to the jury’s attention purported facts that are not in evidence and are prejudicial, United States v. Leon, 534 F.2d 667, 679 (6th Cir.1976) (citing Berger, 295 U.S. at 88, 55 S.Ct. at 633).
2.
Unless calculated to incite the passions and prejudices of the jurors, appeals to the jury to act as the community conscience are not per se impermissible. See Henderson v. United States, 218 F.2d 14, 19-20 (6th Cir.), cert. denied, 349 U.S. 920, 75 S.Ct. 660, 99 L.Ed. 1253 (1955). Our determination of whether comments are calculated to incite prejudice and passion in the jury is informed by the Supreme Court opinion in Viereck.
Eight years after the Berger decision, in Viereck, the Supreme Court considered the propriety of a prosecutor’s closing argument which appealed to the national or patriotic community interest of the jurors during World War II. The petitioner had been convicted for willfully omitting a material fact in a registration form filed by him with the Secretary of State. The Secretary of State required the registration of certain agents of foreign principals. The Secretary of State also required disclosure of the terms and conditions of the agents’ contracts with foreign principals. Viereck, 318 U.S. at 237-38, 63 S.Ct. at 561-62.
At a time when the United States was participating in World War II, the Supreme Court found that statements by the prosecutor regarding jurors’ patriotism constituted an appeal wholly irrelevant to any facts or issues in the case, the purpose and effect of which could have only been to arouse passion and prejudice. While the Supreme Court reversed on the grounds of a different error, the Court explicitly stated that it thought the prosecutor’s conduct prejudiced the petitioner’s right to a fair trial and that, independent of the error for which the conviction was reversed, the conduct might well have placed the judgment of conviction in jeopardy. The remarks found prejudicial were as follows:
In closing, let me remind you, ladies and gentlemen, that this is war. This is war, harsh, cruel, murderous war. There are those who, right at this very moment, are plotting your death and my death; plotting our death and the death of our families because we have committed no other crime than that we do not agree with their ideas of persecution and concentration camps.
This is war. It is a fight to the death. The American people are relying upon you ladies and gentlemen for their protection against this sort of crime, just as much as they are relying upon the protection of the men who man the guns in Bataan Peninsula, and everywhere else. They are relying upon you ladies and gentlemen for their protection. We are at war. You have a duty to perform here.
As a representative of your Government I am calling upon every one of you to do your duty.
Id. at 247 n. 3, 63 S.Ct. at 566 n. 3.
The remarks in the instant case are analogous to the comments adjudged inflammatory and prejudicial in Viereck. The fairness or unfairness of comments appealing to the national or local community interests of jurors in a given instance will depend in great part on the nature of the community interest appealed to, and its relationship to, and the nature of, the wider social-political context to which it refers. The correlation between the community interest comments and the wider social-political context to a large extent controls the determination of whether an appeal is deemed impermissible because it is calculated to inflame passion and prejudice. The Supreme Court in Viereck framed the inquiry to incorporate both the purpose and effect of the comments. In that case, in the light of contemporaneous events, which had great impact on the emotions and perceptions of jurors, the remarks “could only have... arouse[d] passion and prejudice.” See id. at 247, 63 S.Ct. at 566.
In United States v. Barker, 553 F.2d 1013, 1024-25 (6th Cir.1977), in reviewing a conviction for bank robbery, we considered remarks which were found to have been deliberately made. These remarks were: “[I]f you can’t take this evidence and find these defendants guilty on this evidence that [sic] we might as well open all the banks and say, ‘Come on and get the money, boys, because we’ll never be able to convict them.’ ” Id. at 1025. We determined that it was beyond the bounds of propriety for a prosecutor to suggest that unless the defendant was convicted it would be impossible to maintain “law and order” in the jurors’ community. Id.
The D.C. Circuit has applied this principle prohibiting appeals which are inflammatory in the contemporary climate to pleas against the drug problem in the ongoing drug war. United States v. Hawkins, 595 F.2d 751 (D.C.Cir.1978), cert. denied, 441 U.S. 910, 99 S.Ct. 2005, 60 L.Ed.2d 380 (1979). The D.C. Circuit stated that prosecutors are not “at liberty to substitute emotion for evidence by equating, directly or by innuendo, a verdict of guilty to a blow against the drug problem.” Id. at 754.
In United States v. Barlin, 686 F.2d 81 (2d Cir.1982), the Second Circuit found improper statements very similar to the ones alleged prejudicial in the instant case. In Barlin, the court found the prosecutor to have improperly appealed to the jury’s passion and emotion in characterizing its job as “the one occasion on which you have a duty to do something about the drug traffic in our community.” Id. at 93. We agree with the Second Circuit’s condemnation of this genre of comments designed to divert rather than focus the jury upon the evidence. See id.
We agree with the following statement by the court in United States v. Monaghan, 741 F.2d 1434 (D.C.Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985), condemning appeals to the community interest to end a societal evil:
A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking. The evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence. Jurors may be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the solution of some pressing social problem. The amelioration of society’s woes is far too heavy a burden for the individual criminal defendant to bear.
Id. at 1441.
In the instant case, we examine closely the substance of the prosecutor’s statements to determine whether they were calculated to inflame. Our determination will depend on whether the statements appeal to community interests in light of current events and the nature of the specific case. In the case before us, the effect of the prosecutor’s comments was to suggest to the jury that, because of defendant’s participation in the drug trade in northern Kentucky, the drug problem facing the jurors’ community would continue if they did not convict her. It is error for a prosecutor to direct the jurors’ desires to end a social problem toward convicting a particular defendant.
Even though this nation is in the midst of an ongoing crisis, popularly termed the “War on Drugs,” this crisis does not create an excuse to impinge on the constitutional right to a fair trial. We repeat what we stated in United States v. Radka, 904 F.2d 357 (6th Cir.1990):
Presently, our nation is plagued with the destructive effects of the illegal importation and distribution of drugs. At this critical time, our Constitution remains a lodestar for the protections that shall endure the most pernicious affronts to our society.... The drug crisis does not license the aggrandizement of governmental power in lieu of civil liberties. Despite the devastation wrought by drug trafficking in communities nationwide, we cannot suspend the precious rights guaranteed by the Constitution in an effort to fight the “War on Drugs.”
Id. at 361 (reversing a denial of a defendant’s motion to suppress evidence obtained in a warrantless search of defendant’s home because there were no exigent circumstances). Here, defendant’s constitutional right to a fair trial was violated because the appeal to the community conscience in the context of the War on Drugs prejudicially impacted on her. The fear surrounding the War on Drugs undoubtedly influenced the jury by diverting its attention away from its task to weigh the evidence and submit a reasoned decision finding defendant guilty or innocent of the crimes with which she was charged. The substance of the statements made by the prosecutor in this case were designed, both in purpose and effect, to arouse passion and prejudice and to inflame the jurors’ emotions regarding the War on Drugs by urging them to send a message and strike a blow to the drug problem.
This nation faces a variety of social problems with which all citizens are daily confronted. The drug problem is one of the most compelling and devastating problems faced by this nation today. This Court is acutely aware of the nature and extent of the drug problem. However, government prosecutors are not at liberty to urge jurors to convict defendants as blows to the drug problem faced by society or specifically, within their communities, or to send messages to all drug dealers. Such appeals are extremely prejudicial and harmful to the constitutional right to a fair trial. It should be clear from the foregoing discussion that, while not causing error per se unless the statements are deemed to be calculated to incite prejudice, prosecutors should exercise extreme caution when making any statement referring to the community interests of jurors.
The government relies on United States v. Alloway, 397 F.2d 105 (6th Cir.1968), to provide an example of a similar instance of comments directed to the community conscience of jurors. In Alloway we reviewed a conviction for armed robbery of a Federal Savings & Loan Association. The defendant asserted that improper argument by the prosecutor should have resulted in a mistrial. We held that the following statements by the prosecutor did not exceed the permissible bounds of advocacy and that therefore the district court did not abuse its discretion in denying defendant’s motion for a mistrial:
You, the jurors, are called upon in this case to be the world conscience of the community. And I’m calling on this jury to speak out for the community and let the John Alloways know that this type of conduct will not be tolerated, that we're not going to tolerate [armed robbery],...
397 F.2d at 113. The district court in Allo-way subsequently instructed the jury to base its verdict solely on the evidence and to consider the prosecutor’s argument only as it corresponded with the evidence. Id.
The comments by the prosecutor in Allo-way and the comments complained of in the instant ease are only vaguely similar. The remarks in this case appear to us to have been deliberately injected into the proceedings to incite the jury against defendant. Given the nature of this case, involving a cocaine transaction, and the wider social context which the prosecutor sought to bring to bear on the proceedings, the national drug problem, the purpose and effect of the comments could have only been to arouse passion and prejudice. See Viereck, 318 U.S. at 247, 63 S.Ct. at 566. We determined that the statements made in Alloway were not deliberately injected into the proceedings to inflame the jury. See 397 F.2d at 113. Indeed, examined in the light of the nature of the case and the wider social context in which the case was prosecuted, it is clear that the government’s statements in Alloway were devoid of the sort of inflammatory content inherent in the prosecutor’s statements in this case precisely because there was no comparable specific wider context of national attention and concern present in Alloway pertaining to armed robbery. The comments in Alloway did not attempt to compare or to associate the defendant with a feared and highly publicized group, such as drug dealers, as did the prosecutor in this case. The prosecutor in Alloway did not go beyond a mere allusion to the general need to convict guilty people, as did the prosecutor in this case, and bring to bear upon the jury’s deliberations the attendant social consequences of defendant’s criminal conduct or urge the jury to convict an individual defendant in an effort to ameliorate society’s woes.
Here, the prosecutor honed in on the illegal drug trade, which is the specific focus of much national attention, concern and fear. Thus, in Alloway, we were not presented with a context similar to the context of the case before us now. This case involves a woman charged with possession of cocaine with intent to distribute cocaine, among other charges. The wider social, political reality into which the prosecutor impermissibly sought to insert the case is the highly publicized, national and international drug trade. The prosecutor brought to bear upon the jury’s decision whether to convict defendant the pervasive fear of drugs and the attendant dangers of drugs and drug addiction. The almost daily attention given by the media and politicians to the drug trade and gang violence, for example, have heightened the nation’s awareness of, and hardened its attitudes towards, the drug problem. Thus, the prosecutor’s appeal to the jury to convict a defendant as a blow to the drug problem or to send messages to drug dealers cannot be other than highly prejudicial given the specific context of the case in the current social-political environment.
In Alloway, we were presented with remarks by the prosecutor which alluded only to the general criminality of the defendant’s conduct in robbing a bank and the general community need to convict guilty people. The comments at issue in Alloway constituted a general plea which did not even specifically refer to the crime of armed robbery. Moreover, armed robbery was not and is not the specific focus of national attention as is the drug problem. In the instant case, we find that Alloway is inap-posite because, in this case, the prosecutor went beyond the scope of the prosecutor’s statements in Alloway, which constituted a mere innocuous reference to the community or societal need to convict guilty people. The prosecutor in the instant case went beyond stating the obvious, and went so far as to urge the jury to send a message to the community, to defendant and “all of the drug dealers like her” by convicting defendant. The prosecutor suggested to the jury that convicting defendant would help keep its community in northern Kentucky free of the drug trade by sending the message that “we don’t want that stuff in Northern Kentucky and that anybody who brings that stuff...” presumably would be convicted just like defendant in this, case. We determine that the prosecutor improperly injected the spectre of an influx of cocaine dealers into the jurors’ community in an attempt to appeal to the jurors’ emotions, passions and prejudices against the drug problem. See generally United States v. Love, 534 F.2d 87, 89 (6th Cir.1976) (finding reversible misconduct where prosecutor intentionally and for no legitimate purpose injected into the trial the spectre of organized crime and the Mafia).
Thus, we conclude that the complained of remarks by the prosecutor in this case constitute error. The remarks were isolated to one portion of the trial, closing argument. However, this fact does not ameliorate their prejudicial impact; the remarks were misleading, inflammatory and prejudiced defendant’s right to a fair trial.
D.
1.
Having determined that the prosecutor’s remarks were prejudicial to defendant’s right to a fair trial and thus constituted error, we now turn to examine whether such error was harmless.
Our review of a claim of prosecuto-rial misconduct on appeal is guided by the standards set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), to determine whether constitutional error is harmless error or whether reversible error has resulted from improper evidence or improper argument to the jury. In Chapman, the Supreme Court held that errors at trial, even federal constitutional errors, do not require automatic reversal of a conviction if the error can be classified as harmless. It is incumbent upon the government to demonstrate that such constitutional error, resulting from the admission of highly prejudicial evidence or comment, is harmless beyond a reasonable doubt. Id. at 24, 87 S.Ct. at 828. If there is a reasonable possibility that the evidence or comment complained of might have contributed to the conviction, then such error cannot be harmless beyond a reasonable doubt. See id. at 23-24, 87 S.Ct. at 827-28 (relying on Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963)); Coury v. Livesay, 868 F.2d 842, 845-46 (6th Cir.1989) (applying the Chapman harmless error analysis to determine whether the error affected the result).
The result of a harmless error analysis depends on the circumstances of the particular case. Phelps v. Duckworth, 772 F.2d 1410, 1413 (7th Cir.) (en banc), cert. denied, 474 U.S. 1011, 106 S.Ct. 541, 88 L.Ed.2d 471 (1985); United States v. Shue, 766 F.2d 1122, 1132 (7th Cir.1985). Determining whether an error is reversible necessitates examination of the entire record. See United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983). Hasting reiterated the Supreme Court’s recognition that “given the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error free, perfect trial, and that the Constitution does not guarantee such a trial.” Id. at 508-09, 103 S.Ct. at 1980.
2.
The government urges us to find that the prosecutor’s comments were fair comment based upon the evidence and were cured by an admonition from the trial judge.
Prosecutorial missteps have been held harmless in light of the relative strength of the evidence or because instructions given by the trial court sufficiently diluted or eradicated any resulting prejudice. See United States v. Hawkins, 595 F.2d 751, 754-55 (D.C.Cir.1978), cert. denied, 441 U.S. 910, 99 S.Ct. 2005, 60 L.Ed.2d 380 (1979). Regardless of the strength of the case against defendant, the instructions given by the district court were insufficient and came too late to mitigate the negative and highly prejudicial impact of the remarks on the jurors’ minds, especially since the remarks were among the final arguments presented to the jurors prior to their deliberations.
When isolated remarks are made in the course of a long trial and the jury is given an appropriate cautionary instruction designed to overcome any prejudice that may have been caused, the error may be harmless. We examine the curative effect, if any, of the cautionary instruction to the jury in the light of the degree and effect of the prejudice. However, an error may be so prejudicial that no cautionary instruction, however swiftly and forcibly given, can safely eradicate its effect. See Pierce v. United States, 86 F.2d 949, 952-53 (6th Cir.1936).
In Pierce, we articulated the method for testing prejudice where a cautionary instruction has been given to a jury because of improper argument by a prosecutor:
The inquiry... must always be as to whether in view of the whole record the impression conveyed to the minds of 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.
Id. at 952. Similarly, in Ippolito v. United States, 108 F.2d 668, 670-71 (6th Cir.1940), we stated that “appeals to the passion and prejudice of a jury,” while constituting error, do not require reversal unless such error affects the substantial rights of parties. Id. at 670. We recognized, as we do here, that a single instance of error may be so destructive of a defendant’s right to a fair trial that reversal must follow. Id. at 671.
In United States v. Ashworth, 836 F.2d 260, 267 (6th Cir.1988), we adopted the Ninth Circuit’s analysis in United States v. Flake, 746 F.2d 535 (9th Cir.1984), cert. denied, 469 U.S. 1225, 105 S.Ct. 1220, 84 L.Ed.2d 360 (1985). The Flake court framed the question of whether a new trial is warranted as whether improprieties in counsel’s argument to the jury were so gross as to probably prejudice the defendant and whether any resulting prejudice was not neutralized by the trial judge’s instruction or admonition to the jury. Id. at 542. The court in Flake found that improprieties in the prosecutor’s argument to the jury were improper but not gross, and in any case were followed swiftly by the court’s admonition and the prosecutor’s apology and personal request that the jury heed the court’s instructions. Ashworth involved an appeal from the defendants’ convictions for conspiracy and arson. The Ashworth court applied the Flake approach to determine whether prejudice resulted from improper prosecutorial comment on a fact not in evidence and whether such comment was cured by an admonition from the court. In argument to the jury, the prosecutor referred to prior statements by two co-defendants to the effect that they denied talking to each other on the night of the fire. On appeal, we concluded that the prosecutor’s comment was not so gross as to probably prejudice the defendants and that any slight prejudice resulting from the improper argument was neutralized by the court’s cautionary instruction to the jury that the attorneys’ arguments were not evidence. Ashworth, 836 F.2d at 267.
In this case, we find the comments made by the prosecutor during closing argument to have been so gross as to probably prejudice defendant. We also find that the trial court’s admonition to the jury did not neutralize the prejudice resulting from such comments. Therefore, we cannot conclude that there is no reasonable possibility that the comments did not contribute to defendant’s conviction.
Both the timing and the firmness of the trial court’s admonition are relevant in evaluating whether an admonition has been sufficient to mitigate prejudicial error. In Bess we found the timing of the trial judge’s admonition relevant. In finding improper remarks by the prosecutor to constitute reversible error, we noted that the objectionable remarks were promptly objected to, but that the trial judge failed to give an immediate curative admonition. 593 F.2d at 757. In Bess we stressed that corrective measures should be taken immediately in instances of prosecutorial misconduct so as to ameliorate any resulting prejudice. Id. at 757 n. 10. While the trial judge in this case did admonish the jury, the admonition given to the jury took place after a twenty-minute recess which occurred immediately following the prosecutor’s improper statements. As the defense counsel stated, these comments were allowed to become “etched in granite” in the jurors’ minds. The admonition given by the district court in this ease was given too late to eradicate the prejudice from the jurors’ minds. Moreover, the misconduct which took place in the instant case “called for stern rebuke and repressive measures.” Berger v. United States, 295 U.S. 78, 85, 55 S.Ct. 629, 632, 79 L.Ed. 1314 (1935). In cases where an admonition has been found to mitigate or remove the taint of prejudicial prosecutorial misconduct, the admonition has been swiftly given and firm. See Phelps v. Duckworth, 772 F.2d 1410, 1413-14 (7th Cir.) (en banc), cert. denied, 474 U.S. 1011, 106 S.Ct. 541, 88 L.Ed.2d 471 (1985). In Phelps, the jury was admonished twice to correct the prejudicial statements. Id. Moreover, in Phelps, the jury was admonished immediately. The admonition in this case was neither swiftly
Question: Did the court refuse to rule on the merits of the case because it was considered to be a nonjusticiable "political question"?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_treat
|
F
|
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.
TRAVELERS FIRE INSURANCE CO. v. FRADY.
No. 6000.
United States Court of Appeals Fourth Circuit.
Argued Jan. 5, 1950.
Decided Feb. 25, 1950.
Thos. B. Butler, Spartanburg, S.C. (Osborne, Butler & Moore, Spartanburg, S.C. on the brief), for appellant.
J. Manning Poliakoff, Spartanburg, S.C. (Poliakoff & Poliakoff, Spartanburg, S. C., on the brief), for appellee.
Before PARKER, Chief Judge, SOPER, Circuit Judge, and WARLICK, District Judge.
WARLICK, District Judge.
This is an action originally instituted in the Court of Common Pleas for Spartan-burg County, South Carolina, against the appellant, the Travelers Fire Insurance Company, in which action the plaintiff sought to recover the full coverage of $4,000 on a policy of fire insurance issued to him trading as above by the appellant — and on the ground of diversity of citizenship was removed to the United States District Court for the Westérn District of South Carolina at Spartanburg.
On the trial of the matter which was upon the facts without a jury; as prescribed in Rule 52 (a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., certain findings of fact were made by the Presiding' Judge and on the findings of fact, his conclusions of law were set down and the judgment entered. From that comes this appeal to us.
From the evidence offered it appears that Fred J. Frady is a citizen and resident of Spartanburg, South Carolina and a disabled veteran of World War II and a man of very limited business experience.
That for sometime prior to the 18th of December, 1947, he was engaged in doing business as the Lyman Wholesale and Salvage Company in the Town of Wellford in Spartanburg County. That his business was chiefly that of dealing in war surplus materials and under his priority as a war veteran was engaged in the purchase of war surplus material from the War Assets Administration and the sale thereof to prospective purchasers for a profit. On the said 18th day of December, 1947, in consideration of the payment of a premium of $80.00 by him to the defendant, a Connecticut corporation engaged in the general fire insurance business, and domesticated in South Carolina, there was issued to him by the defendant a policy of insurance insuring him against loss by fire of the merchandise stored in his warehouse at Wellford, South Carolina, in the amount of $4,000.
That on February 5, 1948, while the insurance policy was in full force and effect the warehouse and all of its contents were totally destroyed by fire. There is no suggestion found anywhere in the record that the fire was other than a normal insurance casualty. Plaintiff gave written notice of and furnished proof of loss as required by the provisions of the policy and undertook and made available to the defendant all of his records which he was able to obtain relating to the goods and merchandise and the inventory thereof which was stored in the warehouse at the time of the fire. All records and books and papers were likewise wholly destroyed and the salvage after the fire consisted of nothing except burned and damaged scrap iron and other non-flammable material. The whole of his stock in trade prior to the fire consisting of a large number of different surplus commodities, including cotter pins of all sizes and estimated to weigh as much as thirty tons, electronic equipment, tubing, steel oil valves, sheet metal and other properties of a heavy character and which from one exhibit numbered in excess of forty five different items.
That the policy of insurance among other things contained the following: “Furnish a complete-inventory of the destroyed, damaged and undamaged property, render within sixty days a sworn proof of loss, and produce for examination all accounts, bills, invoices, and other vouchers as often as may be reasonably required.”
That following the fire and during the time when an effort was being made by the appellee and certain representatives and adjusters of the Travelers Fire Insurance Company in an effort to ascertain certain information and work out an agreement, a paperwriting was executed by the parties hereto, known as the “non-waiver agreement” so that more time might be given to a study of the damage suffered and sustained and involving no waiver of the rights of the parties.
Following this additional time given and on May 5, 1948, Fred-J. Frady, the insured, submitted to the appellant a sworn statement in proof of loss on a form issued by it, indicating that the actual cash value of the destroyed property at the time of the fire was in excess of $5,750. On the defendant demanding that plaintiff file with it a complete inventory itemizing each item in the warehouse at the time of the fire, and cost thereof, and being unable to do so on account of the complete and utter destruction of all records and the failure of plaintiff and the defendant to adjust and effect a reconciliation of the items, etc., this action was then instituted.
The District Court made the following among its findings of fact: “Plaintiff and his attorneys have made bona fide efforts to establish the inventory demanded by the defendant, and produced all available documeats, memoranda, copy of such invocies as were obtainable, affidavits, and testimony to prove his loss,” and, “The plaintiff has substantially complied with the requirements of the policy of insurance in establishing proof of his loss and by invoices, testimony, memoranda, plaintiff has established that the market value of the goods and merchandise in the warehouse at the time of the fire exceeded the sum of Four Thousand Dollars ($4,000.00).”
The appellant sets out in its brief that the following questions are involved:
“1. Should not the judgment in favor of appellee have been limited to the total of the War Assets Administration invoices produced ($3,476.49) less his admitted sales ($700.00), Or the sum of $2,776.49, as being the only substantial compliance with the terms of the policy?
“2. Should it not be held that parol evidence is not competent to establish the loss, under the requirements of the policy as to the character of the proof required to be submitted ?
“3. Should not interest be limited to the time from the entry of judgment?
“4. Is not the measure of damages the invoice price paid by appellee for the different articles?”
The findings of fact carefully and elaborately made by the learned District Judge answer each of the questions asked and when they may fall short the answer Is found in the policy of insurance in suit. Rule 52 (a) of the Federal Rules of Civil Procedure provides that the findings of fact of the court sitting without a jury shall not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. Certainly, from a study of the record as a whole, one could by no means come to the conclusion that any of the findings of fact were clearly erroneous, and our conclusion is that the findings of the District Judge were not in error but were supported by the evidence. While a complete inventory of the property destroyed by fire was not furnished plaintiff did obtain and furnish duplicate invoices covering property which he had purchased and which he claimed to have been destroyed by the fire; and there is ample evidence that the value of the property covered by these invoices exceeded $4,000, the face of the policy.
Appellant proceeds on the erroneous assumption that what is required by the “requirements in case of loss” clause is the equivalent of what is required by the “iron safe” clause. As this court has pointed out, however, the two clauses are vastly different, one having as its primary requirements conditions subsequent. See North British & Mercantile Insurance Co. v. Crowley, 4 Cir., 164 F.2d 550, wherein the comparison between the two requirements is fully set out. All that the South Carolina courts require to be shown in the “requirements in case of loss” clause is a substantial compliance therewith, — Evans v. Century Insurance Company, 201 S.C. 273, 22 S.E.2d 877. We agree with appellant that compliance with the clause here relied on is essential to recovery; but substantial compliance is all that is necessary and we think it clear that, to the extent that the loss was shown by the invoices furnished, there was substantial compliance and that the value of the property embraced in the invoices was shown to be in excess of the face of the policy.
The measure of damages as well as the period when interest on the judgment would be effective are both answered by the terms of the policy, for therein it is found that the defendant in its policy agrees to pay upon loss to the insured “to the extent of the actual cash value of the property at the time of loss but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss, etc.”
This statement in the policy has been passed upon and its terms decided in North British & Mercantile Insurance Company v. Crowley, 4 Cir., 164 F.2d 550.
As to the question of interest, it appears that the loss was not payable under the policy until sixty days after the filing of the proofs of loss, which occurred on May 5, 1948. Interest should run, therefore, not from the date of the fire as provided in the judgment, but from July 5, 1948. Columbia Real Estate & Trust Co. v. Royal Exchange Assurance, 132 S.C. 427, 128 S.E. 865; Berry v. Virginia State Ins. Co., 83 S.C. 13, 64 S.E. 859 ; 46 C.J.S., Insurance, § 1393, page 698. The judgment will be modified accordingly. As so modified it will be affirmed.
'Modified and 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_casetyp1_2-2
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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 "civil rights".
Kent EARNHARDT, et al., Plaintiffs, Appellees, v. The COMMONWEALTH OF PUERTO RICO, et al., Defendants, Appellants. Kent EARNHARDT, Plaintiff, Appellant, v. The COMMONWEALTH OF PUERTO RICO, et al., Defendants, Appellees.
Nos. 84-1055, 84-1105.
United States Court of Appeals, First Circuit.
Argued June 7, 1984.
Decided Sept. 17, 1984.
Carlos V. Garcia Gutierrez, Santurce, P.R., for Kent Earnhardt, et al.
Gerardo Mariani, Asst. Sol. Gen., San Juan, P.R., with whom Miguel A. Pagan, Deputy Sol. Gen., Dept, of Justice, San Juan, P.R., was on brief, for The Commonwealth of Puerto Rico, et al.
Before BOWNES and BREYER, Circuit Judges, and DOYLE, Senior District Judge.
Of the Western District of Wisconsin, sitting by designation.
BOWNES, Circuit Judge.
In this Title VII discriminatory discharge case, based on 42 U.S.C. § 2000e, plaintiff, Dr. Kent Earnhardt (Earnhardt), convinced the district court that his employment with the Commonwealth of Puerto Rico was terminated because of invidious national origin discrimination and the court awarded him his lost salary as damages. Defendant Commonwealth of Puerto Rico (Commonwealth) appeals, maintaining that the district court, 582 F.Supp. 25, erred in concluding the plaintiff was fired as a result of discriminatory animus. Plaintiff Earnhardt cross-appeals the denial of a Federal Rule of Civil Procedure 59(e) motion to amend the back pay judgment to include prejudgment interest and a liquidated sum for loss of fringe benefits.
The court’s subsidiary findings of fact and its ultimate determination of liability are amply supported by the evidence. Because the findings rest on a strong evidentiary base, we rehearse only the factual highlights.
Earnhardt, who was born in the continental United States, was hired by the Commonwealth of Puerto Rico Health Department (Department) by contract dated October 24, 1975. The decision to hire Earnhardt was made by Dr. Antonio Silva Iglecia (Silva), who at that time was Assistant Secretary of Health for the Family Planning Division. The contract, under which he was to work ninety-five hours per month, expired on June 30, 1976. Shortly before that date, the contract was renewed for an additional year. In September 1976, the new contract was amended to allow for prorated sick leave and vacation time.
During his tenure with the Department, Earnhardt worked closely with Silva, preparing speeches and other policy statements. He represented Silva and the Department at an international conference on population and worked on various research projects. Earnhardt subsequently became subdirector of the Planning and Development Division under Sandra Quinones Lopez (Quinones) in July of 1976. Earnhardt’s contract was terminated later that year by a memorandum dated December 20, 1976, stating that clause 11 of the contract was the basis for the termination. Clause 11 provided that either party had the right to terminate the contract on thirty days’ notice, No reason was given to Earnhardt for the contract termination; Silva testified that he had invoked clause 11 so that the termination would not have to be justified by specific reasons.
The district court found as follows. Earnhardt, the only continental American working in the Family Planning Program, was frequently reminded of this by being addressed as “gringo” by his supervisors and co-workers rather than by his name. He was criticized upon occasion for being “muy Americano” (“very American”). “There existed in the workplace a sense that ‘Americans’ were outsiders, and that Earnhardt was one of them.” Earnhardt’s supervisor, Silva, who signed the termination memorandum, was “overly sensitive to professional differences of opinion when they came from ‘Americans.’ ” This was evidenced by a memorandum couched in ethnic terms from Silva responding to a critique by a team of evaluators from the U.S. Department of Health, Education, and Welfare and by comments Silva made to Earnhardt.
The Commonwealth contends that low productivity was the cause of Earnhardt’s termination rather than any discriminatory animus of his supervisors and co-workers. We agree with the district court that this profferred reason is not credible: “The overall impression we get from the memorandums submitted [into] evidence is that the plaintiff was a worker whose goal was to get on with his work and accomplish it in the most efficient manner possible.” The district court further found that some work rules were applied strictly and inflexibly to the plaintiff in contrast to the flexible application afforded Puerto Rican and Latin American employees in the Division.
Moreover, defendant’s own evidence was inconsistent on the reason for the firing. Silva testified that the reason Earnhardt was fired at this particular time lay in the incumbent government’s desire to turn over to the incoming administration, to which it had lost the election, only the best employees in the division. Yet there is no evidence that any other employee was terminated, or, for that matter, even evaluated at this time. The district court found that Earnhardt’s discharge was in direct violation of a Puerto Rican law which forbids Commonwealth agencies from effectuating any change in the personnel status of any employee during the sixty days before and sixty days after a general election. See 3 L.P.R.A. § 1337; see also Ortiz v. Alcade de Aguadillo, 107 D.P.R. 819 (1978). It was during this sixty-day period that Earnhardt received his termination notice.
Our review of the record convinces us that the district court’s findings were not only not clearly erroneous, but were clearly correct. We, therefore, turn to the plaintiff’s cross-appeal, which questions the summary denial of liquidated fringe benefits and prejudgment interest despite the judgment in his favor.
Plaintiffs Cross-Appeal
Earnhardt submitted a timely Rule 59(e) motion, Fed.R.Civ.P. 59(e), to amend the judgment to include within the back pay award prejudgment interest and liquidated fringe benefits, and to fix a sum certain as the amount of judgment. In his proposed findings and judgment submitted to the court after trial, Earnhardt had omitted these requests and petitioned solely for the value of his employment contract with the Commonwealth, at the rate of $850 per month, which was awarded him. Earnhardt’s 59(e) motion was denied.
Where a district court rejects a motion to alter or amend a judgment, the standard of review is whether there was an abuse of discretion. Robinson v. Watts Detective Agency, 685 F.2d 729, 743 (1st Cir.1982). Although the district court gave no reason for the denial of the motion, it was not required to do so under the rules and we must assume that the motion received careful consideration. The determination of the amount of damages is, absent legal error, a matter for the finder of fact. It cannot be said that either prejudgment interest or an award for lost fringe benefits must, as a matter of law, be part of the damages awarded in a Title VII case. The question of whether they are necessary to make a plaintiff whole is within the discretion of the district court. This is especially so when the request for such an award comes as an afterthought by the plaintiff. The district court did not abuse its discretion in denying the Rule 59(e) motion.
The judgment of the district court is affirmed in all respects.
Question: What is the specific issue in the case within the general category of "civil rights"?
A. civil rights claims by prisoners and those accused of crimes
B. voting rights, race discrimination, sex discrimination
C. other civil rights
Answer:
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songer_casetyp1_1-3-1
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E
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
SNELL v. UNITED STATES.
No. 3857.
United States Court of Appeals Tenth Circuit.
May 10, 1949.
Milton Berger, Denver, Colo., for appellant.
Haskell B. Pugh, Assistant United States Attorney, Oklahoma City, Okl., for appel-lee.
Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges.
BRATTON, Circuit Judge.
An information was filed in the United States Court for Western Oklahoma charging that Harry C. Snell and Joe David Murray, with the use of loaded firearms, robbed the First National Bank of Jones, Oklahoma, of approximately $9,331, such bank then being a member of the Federal Reserve System. The defendants pleaded guilty to the charge contained in the information, and each was sentenced to imprisonment for a term of twenty-five years and to pay a fine of $10,000. About fourteen months after imposition of the sentences, the defendant Snell filed in the case a pleading in the nature of a motion to vacate the written waiver of counsel signed by him, to vacate the plea of guilty entered by him, to vacate the sentence imposed upon him, and to recall the commitment under which he was then confined in prison. The court denied the motion without hearing any evidence, and the defendant appealed.
While drawn inartistically and apparently without the aid of an attorney, the essence of the motion was that the defendant was an ignorant layman not versed in law or criminal procedure; that previous to the filing of the information in this case he had never been charged with a crime; that intermediate his arrest and his appearance before the court he was confined in jail incommunicado; that he had no opportunity to contact persons friendly to him or to learn of his constitutional or legal rights; that he did not effectively waive his right to the assistance of counsel; and that he did not have the benefit of counsel at the time he signed the written waiver, at the time he entered his plea of guilty, and at the time sentence was imposed upon him. The Sixth Amendment to the Constitution of the United States guarantees to one charged with a crime the right to the aid of counsel in his defense, and under the broad sweep of the constitutional safeguard the accused is entitled to the guiding hand of counsel at every stage of the proceedings. Thomas v. Hunter, 10 Cir., 153 F.2d 834. The right to the aid of counsel is personal, and, of course, it may be waived. But it must be waived intelligently, understandingly, and in a competent manner. Caldwell v. Hunter, 10 Cir., 163 F.2d 181, certiorari denied, 333 U.S. 847, 68 S.Ct. 649, 92 L.Ed. 1130.
The right to the assistance of counsel is one of substance, and it is not satisfied by mere legalistic formality. Willis v. Blunter, 10 Cir., 166 F.2d 721, certiorari denied, 334 U.S. 848, 68 S.Ct. 1499, 92 L.Ed. 1772; Fields v. Hunter, 10 Cir., 167 F.2d 547. It is the duty of the trial judge before whom a defendant appears without counsel to make a thorough inquiry and to take all steps necessary to insure the fullest protection of the constitutional right at every stage of the proceedings. That protecting duty imposes upon the trial judge the responsibility of determining whether there is an intelligent and competent waiver by the accused. To discharge that duty, the court must investigate as long and as thoroughly as the circumstances of the case reasonably demand. The fact that an accused may state that he is informed of his right to counsel and desires to waive such right does not automatically end the responsibility of the court. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct 316, 92 L.Ed. 309.
Here, the defendants were taken before the court three days after the commission of the offense charged in the information. The transcript of the proceedings duly certified by the official court reporter, the correctness of which is not challenged, discloses that the Assistant United States Attorney stated that the case was before the court for the waiver of indictment; that the court asked the defendants if they had an attorney and each replied in the negative; that the court asked if they desired one, and they again answered in the negative; that'the court said, “Let them, sign waiver of appointment of attorney”; that after each signed the waiver, the court inquired whether they desired to plead guilty or not guilty; that they each entered a plea of guilty; and that the sentences were immediately imposed. The court did not advise the defendants respecting their right to the assistance of counsel. The nature of the charge or the possible range of punishment was not explained to them. No questions were asked tendirig to elicit information as to whether they desired to waive their right to the assistance of counsel and to enter their pleas of guilty with an apprehension of the nature of the charge, the range of allowable punishment, possible defenses, possible circumstances in mitigation, or other possible similar factors entering into the equation. The signing of a written waiver of the right to the aid of counsel and the entering of a plea of guilty under such circumstances does not satisfy the protecting exactions of the Sixth Amendment. Von Moltke v. Gillies, supra; Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184.
The United States advances the contention that the written waiver and the judgment and sentence recite that the constitutional rights of the defendant were explained to him; ’that such factual recital in the judgment and sentence import verity; and that in the absence of fraud it cannot be collaterally challenged. A factual recital of that kind contained in the judgment and sentence in a criminal case imports verity and in the absence of fraud it is not open to collateral attack in habeas corpus. Ed-minston v. Hunter, 10 Cir., 161 F.2d 691; Christakos v. Hunter, 10 Cir., 161 F.2d 692, certiorari denied, 332 U.S. 801, 68 S.Ct. 92, 92 L.Ed 381. But this is not a proceeding in habeas corpus in which the judgment in the criminal case is being attacked collaterally. It is a motion lodged in the criminal case in which the judgment is being subjected to direct attack. Therefore, the rule on which the United States relies is without application.
The order denying the motion is reversed and the cause is remanded.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
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songer_circuit
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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 circuit of the court that decided the case.
WOOLEYHAN TRANSPORT CO. v. GEORGE RUTLEDGE CO.
No. 9359.
Circuit Court of Appeals, Third Circuit.
Argued May 20, 1947.
Decided July 14, 1947.
Charles E. Cotterill, of New York City (Edmond J. Dwyer, of Newark, N. J., on the brief), for appellant.
James A. Major and Major & Carlsen, all of Hackensack, N. J., for appellee.
Before MARIS, GOODRICH, and KA-LODNER, Circuit Judges.
MARIS, Circuit Judge.
The plaintiff, a common carrier by motor truck, brought suit in the district court against the defendant, a shipper, to recover the difference between the rates actually quoted, charged and collected by it for the transportation of certain goods and the rates as shown by its tariff on file with the Interstate Commerce Commission. The goods were shipped from Montclair to Ped-ricktown, both in the State of New Jersey. The rate actually charged and collected was quoted by the plaintiff to the defendant before the shipments were made. It was the rate which the defendant had previously paid to an intrastate rail carrier for shipment of the same goods between the same points. The plaintiff’s claim was based upon the proposition that it had in fact transported the goods over its interstate route via Wilmington, Delaware. For this reason, it asserted, it was required to collect its filed tariff rate for interstate shipment between Montclair and Pedricktown instead of the rate which it had quoted, charged and collected. At the conclusion of the plaintiff’s case the court granted a nonsuit and the plaintiff appeals.
We see no error in the court’s action. The contract between the parties was for intrastate carriage of the goods by motor truck between Montclair and Pedricktown. There is in New Jersey no regulation of the rates or routes of a motor carrier. The plaintiff was, therefore, free to charge whatever rate was mutually agreed upon for the intrastate carriage of the defendant’s goods. Likewise it was free to use any one or more of the many existing highways in New Jersey in carrying those goods between Montclair and Pedricktown. Instead, for its own convenience and because of certain union contracts with its truck drivers, it transported the goods over a longer interstate route, via Wilmington, Delaware. By such unilateral action, however, it could not convert a lawful contract for intrastate carriage into one for interstate carriage so as to impose upon the defendant shipper liability for a rate higher than it had agreed to pay.
A different situation would be presented if the carrier, as is frequently true in the case of railroads, had only an interstate-route available to it between the two intrastate points. In such a situation the shipper might well be liable for the filed tariff rate for the interstate route which it knew or should have known its goods would follow. Here, however, the plaintiff, with the obvious direct intrastate route open and available to it, took the defendant’s goods around Robin Hood’s barn in getting them from Montclair to Pedricktown.
The judgment of the district court will be 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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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.
NORTH CAROLINA v. ALFORD
No. 14.
Argued November 17, 1969 — Reargued October 14, 1970—
Decided November 23, 1970
White, J., delivered the opinion of the Court, in which Burger, C. J., and HarlaN, Stewart, and BlackmuN, JJ., joined. Blach, J., filed a statement-concurring in the judgment, post, p. 39. BreN-NAN, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 39.
Jacob L. Safron reargued the cause for appellant. With him on the briefs were Robert Morgan, Attorney General of North Carolina, and Andrew A. Vanore, Jr., joined in and adopted by the Attorneys General for their respective States as follows: Joe Purcell of Arkansas, David P. Buckson of Delaware, William J. Scott of Illinois, John B. Breckinridge óf Kentucky, Joe T. Patterson of Mississippi, find Robert L. Woodahl of Montana; by the Government of the Virgin Islands; and by the National District Attorneys Association.
Doris R. Bray, by appointment of the Court, 394 U. S. 1010, reargued the cause and filed briefs for appellee.
Jack Greenberg, James M. Nabrit III, Michael Melts-ner, Ñorman C. Amaker, Charles Stephen Ralston, Anthony G. Amsterdam, J. LeVonne Chambers, and James E. Ferguson II filed a brief for Albert Bobby Childs et al. as amici curiae.
Mr. Justice White
delivered the opinion of the Court.
On December 2, 1963, Alford was indicted for first-degree murder, a capital offense under North Carolina law. The court appointed an attorney to represent him, and this attorney questioned all but one of the various witnesses who appellee said would substantiate his claim of innocence. The witnesses, however, did-not support Alford’s story but gave statements that strongly ■ indicated his guilt. Faced with strong evidence of guilt and no substantial evidentiary support for the claim of innocence, Alford’s attorney recommended that he .plead guilty, but .left the ultimate decision to Alford himself. The prosecutor agreed to accept a plea of guilty to a charge of. second-degree murder, and on December 10, 1963, Alford pleaded guilty to the reduced charge.
Before the plea was finally accepted by the trial court, the court heard the sworn testimony of a police officer who summarized the State’s case. Two other witnesses besides Aiford were also heard. Although there was no eyewitness to the crime, the testimony indicated that shortly before the killing Alford took his gun from his house, stated his intention to kill the victim, and returned home with the declaration that he had carried out the killing. After the summary presentation of the State’s case, Alford took the stand and testified that he had not committed the murder but that he was pleading guilty because he faced the.threat of the death penalty if he did not do so. In response to the questions of his counsel, he acknowledged that his counsel had informed him of -the difference between second- and first-degree murder and of his rights in case he chose to go to trial. The trial court then asked appellee if, in light of his denial of guilt, he still desired to plead guilty to second-degree murder and appellee answered, “Yes, sir. I plead guilty on — from the circumstances that he [Alford’s attorney] told me.” - After eliciting information about Alford’s prior criminal record, which was a long one, the trial court sentenced him to 50 years’ imprisonment, the maximum penalty for second-degree, murder.
• Alford sought post-conviction relief in the state court. Among the claims raised was the claim that his plea of guilty was invalid because it was the product of fear and coercion. After a hearing, the state court in 1965 found that the plea was “willingly, knowingly, and understandingly” made on the advice of competent counsel and in the face of a strong prosecution case. Subsequently, Alford petitioned for a writ of habeas corpus, first in the United States District Court for the Middle District of North Carolina, and then in the Court of Appeals for the Fourth Circuit. Both courts denied, the writ on the basis of the state court’s findings that Alford yoluntarily and knowingly agreed to plead guilty. In 1967, Alford again petitioned for a writ of habeas corpus in the Dis-. trict Court for the Middle District of North Carolina. That court, without an evidentiary, hearing, again denied relief on the grounds that the guilty plea was voluntary and waived all defenses and nonjurisdictional' defects in any prior stage of the proceedings, and that the findings of the state court in 1965 clearly required rejection of Alford’s claim that he was denied effective assistance of-counsel prior to pleading guilty. On appeal, a divided panel of the Court of Appeals for the Fourth Circuit reversed on the ground that Alford’s guilty plea was made involuntarily. 405 F. 2d 340. (1968). In reaching itá conclusion, the Court of Appeals relied heavily on United States v. Jackson, 390 U. S. 570 (1968), which the court read to require invalidation of the North Carolina statutory framework for the imposition of the death penalty because North Carolina statutes encouraged defendants to waive constitutional rights by the promise of no more than life imprisonment if a guilty plea was offered and accepted. Conceding that Jackson did not require the automatic invalidation of pleas of guilty entered under the North Carolina statutes, the Court of Appeals ruled that Alford’s guilty plea was involuntary because its principal .motivation was fear of the death penalty. By this standard, even if both the judge and the jury had possessed the 4)0wer to impose the death, penalty for first-degree murder or if guilty pleas to capital charges had not been permitted, Alford’s plea of guilty to second-degree murder should still have been rejected because impermissibly induced by his desire to eliminate the possibility of a death sentence. We noted probable jurisdiction. 394 U. S. 956 (1969). We vacate the judgment of the Court of Appeals and remand the case for further proceedings.
We held in Brady v. United States, 397 U. S. 742 (1970), that a plea of guilty which would not have been entered except for the defendant’s desire to avoid.a possible death penalty and to limit the maximum penalty to life imprisonment or a term of years was not for that reason compelled within the meaning óf it 3 Fifth Amendment. , Jackson established no new test for determining the validity of guilty pleas. Th,e standard was' and remains whether the plea represents a voluntary and intelligent choice among the alternative courses .of action open to. the defendant. See Boykin v. Alabama, 395 U. S. 238, 242 (1969); Machibroda v. United States, 368. U. S. 487, 493 (1962); Kercheval v. United States, 274 U. S. 220, 223 (1927). That he would not have pleaded except for the opportunity to limit the possible penalty does not necessarily demonstrate that the plea of guilty was not the product of a free and rational choice, especially where the defendant was represented'by competent counsel whose advice was that the plea would be to the defendant’s' advantage; The standard fashioned and applied by the Court of Appeals was therefore erroneous and we would, without more, vacate and remand the case for further proceedings with respect to any other claims of Alford .which are properly before that court, if it were not for' oth.er 'circumstances appearing in the record which might seem to warrant an affirmance of the Court of Appeals.
As previously recounted, after Alford’s plea of guilty was offered and the State’s case was placed before the judge, Alford denied that he had committed the murder but reaffirmed his desire to plead guilty to avoid a possible death sentence and to limit the penalty to the 30- ' year maximum provided for second-degree murder. Ordinarily; a judgment of conviction resting on a plea of guilty is justified by the defendant’s admission that he committed the crime charged against him and his consent that judgment be entered without a trial of any kind. The plea usually subsumes both elements, and justifiably so, even though there is no separate, express admission by the defendant that he committed the particular acts claimed to constitute the crime charged in the indictment. See Brady v. United States, supra, at 748; McCarthy v. United States, 394 U. S. 459, 466 (1969). Here Alford entered his plea but accompanied it with the statement- that he had not shot the victim:.
If Alford’s statements were to be credited as sincere assertions of his innocence, there obviously existed a factual and legal dispute between him and the State. Without more, it might be argued that the conviction entered on his guilty plea was invalid, since his assertion . of innocence negatived any admission of guilt, which, as we observed last Term in Brady, is normally “[c]entral to the piea and the foundation for entering judgment against the defendant . . . .” 397 U. S., at 748.
In addition to Alford’s statement, however, the court had heard an account of the events on the night of the murder, including information from Alford’s acquaintances that he had departed from his home with his gun stating his intention to kill and that he had later declared that he had carried out his intention. Nor had Alford wavered in his desire to have the trial court determine his guilt without, a jury trial. Although denying the charge against him, he nevertheless preferred the dispute between him and the State to be settled by the judge in the context of a guilty plea proceeding rather than by a formal trial. ' Thereupon, with the State’s telling evidence and Alford’s denial before it. the trial court proceeded to convict and sentence Alford for second-degree murder.
State and lower federal courts are divided upon whether a guilty plea can be accepted when it is accompanied by protestations of innocence and hence contains only a waiver of trial but no admission of guilt. Some courts, giving expression to the principle that “[o]ur law only authorizes a conviction where guilt is shown,” Harris v. State, 76 Tex. Cr. R. 126, 131, 172 S. W. 975, 977 (1915), require that trial judges reject such pleas. See, e. g., Hulsey v. United States, 369 F. 2d 284, 287 (CA5 1966); United States ex rel. Elksnis v. Gilligan, 256 F. Supp. 244, 255-257 (SDNY 1966); People v. Morrison, 348 Mich. 88, 81 N. W. 2d 667 (1957); State v. Reali, 26 N. J. 222, 139 A. 2d 300 (1958); State v. Leyba, 80 N. M. 190, 193, 453 P. 2d 211, 214 (1969); State v. Stacy, 43 Wash. 2d 358, 361-364, 261 P. 2d 400/402-403 (1953). But others have concluded that they should not “force any defense on a defendant in a criminal case/’ particularly' when advancement of the defense might “end in disaster . . . .” Tremblay v. Overholser, 199 F. Supp. 569, 570 (DC 1961). They have argued that, since “guilt, or the degree of guilt, is at times uncertain and elusive,” “[a]n accused, though believing in or entertaining doubts.respecting his innocence, might reasonably conclude a jury would be convinced of his guilt and that he would fare better in the sentence by pleading guilty . . . .” McCoy v. United States, 124 U. S. App. D. C. 177, 179, 363 F. 2d 306, 308 (1966). As one state court observed nearly a century ago, “[rjeasons other than the fact that he is guilty may induce a defendant to so plead, . . . [and] [h]e must be permitted to judge for himself in this respect.” State v. Kaufman, 51 Iowa 578, 580, 2 N. W. 275, 276 (1879) (dictum). Accord, e. g., Griffin v. United States, 132 U. S. App. D. C. 108, 405 F. 2d 1378 (1968); Bruce v. United States, 126 U. S. App. D. C. 336, 342-343, 379 F. 2d 113, 119-120 (1967); City of Burbank v. General Electric Co., 329 F. 2d 825, 835 (CA9 1964) (dictum); State v. Martinez, 89 Idaho 129, 138, 403 P. 2d 597, 602-603 (1965); People v. Hetherington, 379 Ill. 71, 39 N. E. 2d 361 (1942); State ex rel. Crossley v. Tahash, 263 Minn. 299, 307-308, 116 N. W. 2d 666, 672 (1962); Commonwealth v. Cottrell, 433 Pa. 177, 249 A. 2d 294 (1969). 4 Cf. United States ex rel. Brown v. LaVullee, 424 F. 2d 457 (CA2 1970).
This Court has not confrontéd this precise issue, but prior decisions do yield relevant principles. ' In Lynch v. Overholser, 369 U. S. 705 (1962), Lynch, who had been charged in the Municipal Court of the District of Columbia with drawing and negotiating bad checks, • a misdemeanor punishable by a maximum of one year in jail, sought to enter a plea of guilty, but the trial, judge refused to accept the plea since a psychiatric report in the judge’s possession indicated that. Lynch had been suffering from “a manic depressive psychosis, at the time of the crime - charged,” and hence might. have been not guilty by reason of insanity. Although at the subsequent trial Lynch did not rely on the insanity defense, he was found' not guilty by reason of insanity and committed for an indeterminate period to a mental institution. On habeas corpus, the Court ordered his release, construing the "congressional legislation seemingly authorizing the commitment as not reaching a' case where the accused preferred a guilty plea to a plea of insanity. The Court expressly refused to rule that Lynch had an absolute right to have his guilty plea accepted, see id., at 719, but implied that there would havé been no constitutional error had his-plea been accepted even though evidence before the judge indicated that there was a valid defense.
The issue ■ in Hudson v. United States, 272 U. S. 451 (1926), was whether a federal court has power to impose a prison sentence after accepting a plea of nolo contendere, a plea by which a defendant does not expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the court for purposes of the case to treat him as if he were guilty. The Court held that a trial court does have such power, and, except for the cases which were rejected in Hudson, the federal courts have uniformly followed this rule', even in cases involving moral turpitude. Bruce v. United States, supra, at 343 n. 20, 379 F. 2d, at 120 n. 20 (dictum). See, e. g., Lott v. United States, 367 U. S. 421 (1961) (fraudulent evasion of income tax); Sullivan v. United States, 348 U. S. 170 (1954) (ibid.); Farnsworth v. Zerbst, 98 F. 2d 541 (CA5 1938) (espionage); Pharr v. United States, 48 F. 2d 767 (CA6 1931) (misapplication of bank funds); United States v. Bagliore, 182 F. Supp. 714 (EDNY 1960) (receiving stolen property). Implicit in the nolo con-tendere cases is a recognition, that the Constitution does not bar imposition of a prison sentence upon an accused who is unwilling expressly to admit his guilt but who, faced with grim alternatives, is willing to waive his trial and accept the sentence,.
These cases would be directly in point if Alford had simply insisted on his plea but refused to admit the crime. The fact that his plea was denominated a plea of guilty rather than a plea of nolo contendere is of no constitutional significance with respect to the issue now before us, for the Constitution is concerned with the practical consequences, not the formal categorizations, of state law. See Smith v. Bennett, 365 U. S. 708, 712 (1961); Jones v. United States, 362 U. S. 257, 266 (1960). Cf. Kermarec v. Compagnie Generale Transatlantique, 358 U. S. 625, 630-632 (1959). Thus,, while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.
Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt. Here the State had a strong case of first-degree murder against Alford. Whether he realized or disbelieved his guilt, he insisted on his plea because in his view he had absolutely nothing to gain by a trial and much to gain by pleading. Because of the overwhelming evidence against him, a trial was precisely what neither Alford nor his attorney- desired. Confronted with the choice between a trial for- first-degree murder, on the one hand, and a plea of guilty to second-, degree murder, on the other, Alford quite reasonably chose the latter and thereby limited the maximum penalty to a 30-year term. When his plea is viewed in light of the evidence against him, which substantially negated his claim of innocence and which further provided a means by which the judge could test whether the plea was being intelligently entered, see McCarthy v. United States, supra, at 466-467 (1969), its validity-cannot be. seriously questioned. In view of the strong factual basis for the plea demonstrated by the State and Alford's clearly expressed desire to enter it despite his professed belief in'his innocence, we hold that the trial judge did not commit constitutional error in accepting it.
Relying on United States v. Jackson, supra, Alford now argues in effect that the State should not have allowed him this choice but should have insisted on proving him guilty of murder in the first degree. The States in their wisdom may take this course by statute or otherwise and may prohibit the practice of accepting pleas to lesser included offenses under any circumstances. But this is not the mandate of the Fourteenth Amendment and the Bill of Rights. The prohibitions against involuntary or unintelligent pleas should not be relaxed, but neither should an exercise-in arid logic render those constitutional guarantees counterproductive and put in jeopardy the very human values they were meant to preserve.
The Court of Appeals for the Fourth Circuit was in error to find Alford’s plea of guilty invalid because it was made to avoid the possibility of the death penalty. That court’s judgment directing the issuance of the writ of habeas corpus is vacated and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.
It is so ordered.
Mr. Justice Black, while adhering to his belief that. United States v. Jackson, 390 U. S. 570, was wrongly decided, concurs in the judgment and in substantially.all of the opinion in this case.
Under North Carolina law, first-degree murder is-punished with, death unless the jury recommends that the punishment shall be life imprisonment:
X“A murder which shall be perpetrated by-means of poison, lying in wait, imprisonment, starving, torture, or by any .other .kind of willful, deliberate'and premeditated killing, or which shall be committed in the perpetration or attempt' to perpetrate any arson,' rape, robbery, burglary, o'r other felony, shall be 'deemed to be murder in the-first degree and shall be punished with death:. Provided, if at the time of rendering its verdict in open court, the jury shall so recommend, the punishment shall be imprisonment for life in the State’s prison, and the-court shall 'sy'instruct the jury. All other kinds of murder shall be deemed murder in the second degree, and shall be punished with imprisonment of not less than two nor more than'thirty years in the State’s prison.” N. C. Gen. Stat. § 14-17 (1969).
At the time Alford pleaded guilty, North Carolina law provided that' if a guilty plea to a charge of first-degree murder was accepted by the prosecution and the court, the penalty would be life imprison-. ment rather than death. The provision permitting guilty pleas in capital cases was repealed in 1969. See Parker v. North Carolina, 397 U. S. 790, 792-795 (1970). Though under-.present North Caro--lina law it is not possible for a defendant to plead guilty tea capital charge, it seemingly remains possible for a person charged with a , capital offense to plead-guilty to a lesser charge.
After giving his version of the events of the night of the murder, Alford stated:
“I pleaded guilty on second ‘degree murder because they said there is too much evidence, but I ain’t shot no man, but I take the fault for the other man. We never had an argument in our , life' and I just pleaded guilty because they said if I didn’t they would gas me for it, and that is all.”
In response to questions from his attorney, Alford affirmed that he had consulted several times with his attorney and with members of his family and had been informed of his rights if he chose to plead not guilty. Alford then reaffirmed his decision to plead guilty to second-degree murder:
“Q [by Alford’s attorney]. And you authorized me to tender a plea of guilty to second degree murder before the court?
“A. Yes, sir.
“Q. And in doing that, that you have again affirmed your decision on that point?
“A. Well, I’m still pleading .that you all got me to plead guilty.' I plead the other way, circumstantial evidence; that the jury will prosecute me on — on the second. You told me to plead guilty, right. I don’t — I’m not' guilty but-1 plead guilty.”
At the state court hearing on post-conviction relief, the testimony confirmed that Alford had been fully informed by his attorney as to his rights on a plea of not guilty and as to the consequences of a plea of guilty. Since the record in this case affirmatively indicates that Alford was aware of the consequences of his plea of guilty and of the rights waived by the plea, no issues of substance under Boykin v. Alabama, 395 U. S. 238 (1960), would be presented even if that case was held applicable to the events here in question.
Before Alford was sentenced, the trial judge asked Alford about prior convictions. Alford answered that, among other things, he had served six years of a ten-year sentence for murder, had been convicted nine times for armed robbery, and had been convicted for transporting stolen goods, forgery, and carrying a concealed weapon. App. 9-11.
See n. 1, supra
Thus if Alford had; entered the same plea in the same way in 1969 after the statute authorizing guilty pleas to capital charges had- been repealed, see n. 1, supra, the result reached by the Court of Appeals should have been the same under that court’s reasoning.
A third approach has been to decline to rule .definitively that a trial judge must either accept or reject an otherwise valid plea containing a protestation of innocence, but to leave that decision to his sound discretion. See Maxwell v. United States, 368 F. 2d 735, 738-739 (CA9 1966).
Courts have defined the plea of nob contendere in a variety of different ways, describing it, on the one hand, as “in effect, a plea of guilty,” United States v. Food & Grocery Bureau, 43 F. Supp. 974, 979 (SD Cal: 1942), aff’d,139 F. 2d 973 (CA9 1943), and on the other, as a query directed to the court to determine the defendant’s guilt. State v. Hopkins, 27 Del. 306, 88 A. 473 (1913). See generally Lott v. United States, 367 U. S. 421, 426-427 (1961), id., at 427-430 (Clark, J., dissenting), 21 Am. Jur. 2d, Criminal Law • § 497.. As a result, it is impossible to state precisely what a defendant does admit when he enters a nolo plea in a way that will consistently fit all the cases.
Hudson v. United States, supra, was also ambiguous. In one place, the Court called the plea “an admission of guilt for the purposes of the case,” id., at 455, but in another, the Court quoted an English authority who had defined the plea as one “where a defendant, in a case not capital, doth not directly own himself guilty ...” Id., at 453, quoting 2 W. Hawkins, Pleas, of the Crown 466 (8th ed. 1824).
The plea may have originated in the early medieval practice by which defendants wishing to avoid imprisonment would seek to make an end of the matter (finem facere) by offering to .pay a sum of money to the king. See 2 F. Pollock & F. Maitland, History of English Law 517 (2d <?d. 1909). ■ An. early 15th-century case indicated that a defendant did not admit his guilt when he sought such a compromise, but merely “that he put himself on the grace of our Lord, the King, and asked that he might be allowed to pay a fine (petit se admittit per finem).” Anon.¡ Y. B. Hil. '9 Hen. 6, f. 59, pi. 8 (1431). A 16th-century authority noted that a deféndant who so pleaded “putteth hym selfe in Gratiam Regime without anye inore, or by Protéstation that hee is not guiltie . . . ,” W. Lambard, Eirenareha 427 (1581), while an 18th-century case distinguished between a nolo plea and a jury verdict of guilty, noting that in the former the defendant could introduce evidence of innocence in mitigation of punishment, whereas in the latter such evidence was precluded by the finding of actual guilt. Queen v. Templeman, 1 Salk. 55, 91 Eng. Rep. 54 (K. B. 1702).
Throughout its history, that is, the pléa of nolo contendere has been viewed not.as an express admission of guilt but as a consent by the defendant that he may be punished as if he were guilty and a prayer for leniency. Fed. Rule Crim. Proc. 11 preserves this distinction in its requirement that a court cannot accept a guilty plea “unless it is satisfied that there is a factual basis for the plea”; there is no similar requirement for pleas of nolo con-tendere, since it was thought desirable to permit defendants to plead nolo without making any inquiry into their actual guilt. See Notes of Advisory Committee to Rule 11.
Blum v. United States, 196 F. 269 (CA7 1912); Shapiro v. United States, 196 F. 268 (CA7 1912); Tucker v. United States, 196 F. 260 (CA71912).
Because of the importance of protecting the innocent and of insuring- that guilty pleas are a product of free and intelligent choice, various state and federal court decisions properly caution that pleas coupled with claims of innocence should not be accepted-unless there is a factual basis for the plea, see, e. g., Griffin v. United States, 132 U. S. App. D. C. 108, 110, 405 F. 2d 1378, 1380 (1968); Bruce v. United States, supra, at 342, 379 F. 2d, at 119 (1967); Commonwealth v. Cottrell, 433 Pa. 177, 249 A. 2d 294 (1969); and until the judge taking .the plea has inquired into and sought to resolve the conflict between the "waiver of trial and.the claim of innocence. See, e. g., People v. Serrano, 15 N. Y. 2d 304, 308-309, 206 N. E. 2d 330, 332 (1965); State v. Branner, 149 N. C. 559, 563, 63 S. E. 169, 171 (1908). See also Kreuter v. United States, 201 F, 2d 33, 36 (CA10 1952).
In the federal courts, Fed. Rule Crim. Proc. 11 expressly provides that a court “shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.”
Our holding does not mean that a.trial judge must accept every constitutionally valid guilty plea merely because a defendant wishes so to plead. A criminal defendant does not have an absolute •right, under the Constitution to have his guilty "plea accepted by the court, see! Lynch v. Overholser, 369 U. S., at 719 (by implication), although the States may by statute or otherwise confer such a right. Likewise, the States may bar their courts from accepting ■ guilty pleas from any defendants who assert their innocence. Cf. Fed. Rule Crim. Próc. 11, which gives a trial judge discretion to “refuse to accept a plea of guilty . . . .” We need not now delineate the scope of that' discretion.
North Carolina no longer permits pleas of guilty to capital charges but it appears that pleas of guilty may still be offered to lesser included offenses. See n. 1, supra.
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_stateclaim
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?" 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".The issue hereby considered also pertains to cases where the court concluded that there was no proper cause of action.
Mohammad SAMI, Appellant, v. UNITED STATES of America et al.
No. 78-1975.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 19, 1979.
Decided Dec. 28, 1979.
William W. Becker, Washington, D. C., with whom Virginia A. McArthur, Washington, D. C., was on the brief, for appellant.
E. Anne McKinsey, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Michael W. Farrell, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellees.
Before McGOWAN, LEVENTHAL and WALD, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
United States Attorney at the time the brief was filed.
Circuit Judge Leventhal was a member of the panel which considered this case but died before the opinion was issued.
WALD, Circuit Judge:
This case is a tragedy of errors. It represents an extension of and embroils the United States Government and its officials in what a Maryland appellate court has called “an almost incredible history of marital warfare, with skirmishes occurring up and down the eastern seaboard of this country, as well as abroad.” Sami v. Sami, 29 Md.App. 161, 163-64, 347 A.2d 888, 890 (1975).
I. FACTUAL BACKGROUND
For more than a year preceding the events which gave rise to this suit, plaintiff, a citizen of Afghanistan and an economist stationed at the International Monetary Fund in Washington, had been engaged in a custody dispute with his American wife over their two children. Each had secured in different states, he in Maryland, she in Florida, a court order granting custody over the offspring. At the time of this latest chapter, the children were physically in Florida. Their father had consulted with Washington, D. C. counsel concerning his children’s custody. He was advised to go to Florida and physically bring the children back to Maryland where he had legal custody. His District of Columbia counsel also told him to consult with Florida counsel about the legality of such action. Florida counsel warned him that he would technically be violating Florida law if he removed the children.
Plaintiff went to Florida, and together with a detective hired to assist him for this purpose, transported the children back to Maryland. Plaintiff and the children arrived in Maryland on May 10. Shortly after plaintiff’s arrival there, upon information supplied by Mrs. Sami and presented to a state judge in Broward County, Florida, two warrants were issued for plaintiff’s arrest for taking the children out of state in violation of a Florida court order. Upon the request of the Broward County Sheriff’s Department, and on the basis of the Florida warrants, a Maryland court on May 11 issued a warrant for plaintiff’s arrest. Plaintiff was arrested, appeared in court, and was released on posting a personal recognizance bond of $1000 pending a hearing set for June 19. A condition of the bond was that he not change “residence” in the meantime. The bond did not require that he or the children remain in Maryland, or in the country.
Suspecting plaintiff intended to leave the country with the children, Mrs. Sami, her father and her counsel sought intervention by the United States National Central Bureau (USNCB), of the Department of the Treasury, this country’s liaison with the International Criminal Police Organization (Interpol), to stop him. The first contact with the USNCB was made on May 9. On May 12, when Mrs. Sami informed defendant Sims, chief of the USNCB, of plaintiff’s and the children’s imminent departure from the country, she was told to contact the FBI, Dulles Airport Police and the State Department. Although detained for a few minutes (without the intervention of USNCB), the plane was permitted to leave.
Mrs. Sami had informed the USNCB the day before of the outstanding Florida warrant for plaintiff’s arrest. The warrant’s existence was not confirmed, however, until Sims contacted the Florida sheriff’s office after the plane’s departure. Shortly after verifying the Florida warrants Sims was advised by Mrs. Sami’s lawyer that a Maryland judge intended to issue a bench warrant for plaintiff’s arrest the next morning. Sims confirmed that intent by placing a telephone call to the judge.
Mrs. Sami’s father had earlier been coun-selled by defendant Holmes, Deputy Chief of the USNCB, that the USNCB could do nothing without a request from a law enforcement agency. In response to still another communication after the plane departed, Mrs. Sami’s lawyers were told by Sims that foreign police departments would not be notified of the outstanding Florida warrants until the Broward County Florida State’s Attorney replied to a USNCB inquiry regarding that Attorney’s desire to have the plaintiff arrested and that Attorney’s intention to seek extradition. Shortly after this conversation with Mrs. Sami’s attorneys, Sims was advised by the Bro-ward County Sheriff’s office that the State’s Attorney had authorized plaintiff’s arrest and the initiation of extradition proceedings. Sims knew at the time that only the State Department and not a state or any of its officers or instrumentalities could request extradition from a foreign jurisdiction.
Beginning that evening and continuing throughout the next two days, Sims dispatched a flurry of messages to Interpol liaisons at several points on the plaintiff’s expected route, including London, Rome and Wiesbaden. The first said that plaintiff was wanted on a Florida warrant, requested his immediate arrest, and stated that “Florida will extradite.” Among the reply communications received was one from Rome stating that Italian authorities could do nothing because the warrant was issued in a civil dispute which in their jurisprudence did not justify extradition. On May 13 Sims sent communiques to several Interpol liaisons, including Wiesbaden, which a) stated that the “United States [rather than Florida] will extradite,” b) stated that the Maryland custody order was good only in Maryland and had been superseded by an arrest warrant for plaintiff issued by a Maryland court, and c) characterized the Maryland arrest warrant as a felony warrant. Sims later admitted on deposition that a) when he said the “United States will extradite” he meant Florida would ask the United States to extradite, b) that he just assumed from his conversation with the Maryland judge that a bench warrant on the bond “superseded” the Maryland order granting custody and c) that he had no basis for saying that the Maryland warrant was for a felony. He also admitted that at no time in the unfortunate incident did he contact anyone in the State or Justice Departments to clarify any of this and that he had not read the German-American extradition treaty until after the incident was over.
On May 14 the German authorities arrested plaintiff at Frankfurt, gave the children over to their mother who had been following the plane, and detained plaintiff. The following morning they notified Sims of their action and requested in two communications that the formal extradition request quickly be forwarded through diplomatic channels. On May 16 the State Department determined that no extraditable offense was involved. German officials were so informed both by Sims and through diplomatic channels and were requested to release plaintiff. Although this message appears to have been conveyed on May 16, plaintiff was not in fact released until May 18, four days after his original detention.
The incident provoked the sending of a note from the Afghanistan Embassy to the State Department, and a reply from the State Department, referring to plaintiff’s detention as “improper.” A meeting held June 3,1975, between Departments of State and Justice and USNCB officials resulted in guidelines under which USNCB undertook to consult with the State Department before notifying other countries that a request for provisional arrest will be forwarded through diplomatic channels.
Plaintiff brought suit against Interpol, the United States Government and USNCB officials Sims and Holmes individually for false arrest and imprisonment, libel and slander, and deprivation of his fourth and fifth amendment constitutional rights. The case comes to us on appeal from dismissals of all claims. Summary judgment in favor of defendants United States and Holmes was granted on October 19, 1977. The claims against defendant Interpol were dismissed the same day. Summary judgment in favor of defendant Sims was granted on July 22, 1978. We now consider the claims against each defendant separately.
II. PLAINTIFF’S CLAIM AGAINST INTERPOL
Interpol is an organization whose aims, according to its constitution, are “(a) to ensure and promote the widest possible mutual assistance between all criminal police authorities within the limits of the law existing in the different countries and in the spirit of the ‘Universal Declaration of Human Rights’ and “(b) to establish and develop all institutions likely to contribute effectively to the prevention and suppression of ordinary law crimes.” Interpol Const, art. 2 (1968), Joint Appendix (J.A.) 243.
Interpol has linked offices designated by its various members and its own Paris headquarters with a worldwide radio network. Congress has been informed that “INTERPOL’S function is to provide the coordination and communications mechanism for law enforcement agencies (local, state or Federal) having a foreign investigative requirement and to transmit that requirement to other appropriate foreign law enforcement agencies.” Treasury, Postal Service and General Government Appropriations for Fiscal Year 1977: Hearings on H.R. 14261 before the Subcomm. on Treasury, Postal Service and General Government of the Senate Comm, on Appropriations, 94th Cong., 2d Sess. 169 (February 24, 1976) (statement of David R. Macdonald, Assistant Secretary of Treasury (Enforcement, Operations and Tariff Affairs)) [hereinafter cited as 1976 Senate Appropriations Hearings ].
The United States’ participation in Interpol has been authorized by statute. 22 U.S.C. § 263a (1976). The United States has designated the USNCB, formerly of the Department of Treasury, now of the Justice Department, to act as this country’s Interpol liaison. USNCB employs several full-time employees, including, at the time of these events, defendants Sims and Holmes.
Plaintiff attempted to obtain jurisdiction over Interpol by serving Sims and by serving Stuart Knight, the director of the United States Secret Service and a vice-president of Interpol. Interpol did not respond although the United States Attorney for the District of Columbia, in response to plaintiff’s motion for a default judgment against Interpol, moved for and was granted leave as amicus curiae to “suggest” lack of proper service. Plaintiff had made service under Rule 4(d)(7), Fed.R.Civ.P. invoking Section 13-334 of the District of Columbia Code, alleging that Interpol was a corporation “which does business... in Washington, D. C.,” and that Sims and Knight were its “agents.” The court concluded, however, that Interpol was not “doing business” in the District of Columbia, denied plaintiff’s motion for default and dismissed the action as against Interpol. We affirm the district court’s dismissal in this respect.
International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), remains the touchstone for analysis of the constitutional limitations on a court’s exercise of personal jurisdiction. International Shoe is perhaps best and most frequently remembered for its use of the words “minimum contacts,” id. at 316, 66 S.Ct. 154, but that phrase did not denote a mechanical or quantitative assessment of the defendant’s activities. Id. at 319, 66 S.Ct. 154. The Court clearly thought the relationship between a defendant’s contact with the state and the claim asserted against that defendant of considerable importance. Id. at 319, 320, 66 S.Ct. 154. The test is one which must look to the totality of the circumstances. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 445-46, 72 S.Ct. 413, 96 L.Ed. 485 (1952).
Taken as a whole this record does not support plaintiff’s argument that in the sending or receiving of messages this country’s National Central Bureau designated in accordance with the Interpol constitution, USNCB, acts as an agent of Interpol. The record tends rather to suggest that the USNCB acted exclusively as an agent of the national government which created, staffed, financed and equipped it. For example, the parties have stipulated that the USNCB is a bureau of the U. S. Treasury, that it answers to the Assistant Secretary of the Treasury and to Congress, that it functions in an information liaison capacity, that it employs eleven persons full-time, that all USNCB employees’ salaries are paid by the U. S. government, and that USNCB has franking privileges and uses both Interpol telex equipment and telecommunications facilities owned and operated by the U. S. government. Nothing in the-record indicates that the USNCB employees take orders or receive binding instructions in the performance of their duties from Interpol. Thus the contacts which Interpol has with the forum do not, insofar as appears from this record, consist of the presence within the forum of “agents” for the exchange of law enforcement messages.
Nor does the record establish that the USNCB communications received in this forum from abroad were initiated by Interpol or agents of Interpol. From all that appears the officials sending the messages operated in a capacity strictly analogous to our own USNCB officials, i. e., as agents of their own states’ governments. Thus their communications, received here, cannot suffice as a predicate for personal jurisdiction. Other contacts with the forum supported or even suggested by the record do not themselves demonstrate substantial contact and are individually and collectively too remote from the wrongs alleged to warrant the exercise of personal jurisdiction in this case. See Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1287-88 (9th Cir. 1977). See also Traher v. De Havilland Aircraft of Canada, Ltd., 111 U.S.App.D.C. 33, 294 F.2d 229 (D.C.Cir. 1961) (per curiam) (construing “doing business” within the meaning of the D.C. statute); Mueller Brass Co. v. Alexander Milburn Co., 80 U.S.App.D.C. 274, 152 F.2d 142 (D.C.Cir. 1945) (same). Compare Perkins v. Benguet Consolidated Mining Co., supra.
III. PLAINTIFF’S CLAIM AGAINST THE UNITED STATES
A. The District Court’s Basis For Dismissal
Plaintiff sued the United States under the 1974 amendment to the Federal Tort Claims Act (hereinafter the “Act” or the “FTCA”), Pub.L. 93-253, § 2, 88 Stat. 50 (1974), codified at 28 U.S.C. § 2680(h) (1976), a special proviso to the specific prohibition under the Act of liability for claims “arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” The 1974 amendment permits claims with regard to the acts of “investigative or law enforcement officers of the United States Government” for “assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.” Id.
The United States below argued against the applicability of the 1974 proviso on the ground that while Sims’ job classification brought him within the proviso’s definition of a “federal investigative or law enforcement officer” as one who “is empowered by law to execute searches, to seize evidence, or to make arrests for violation of the Federal law,” id., his duties as Chief of the USNCB did not involve such responsibilities and the 1974 amendment meant to cover only investigative and law enforcement officers while engaged in the performance of the duties described in the statutory definition. Since Sims in his role as Interpol liaison did not execute searches, seize evidence, or make arrests for violation of Federal law, the government argued, claims arising from his performance as Interpol liaison are not covered by the Act.
The district court, however, dismissed the United States as a defendant not on this ground but on a second ground argued by the government, viz., the FTCA’s exception for “claim[s] arising in a foreign country.” 28 U.S.C. § 2680(k) (1976). The court reasoned that plaintiff would have no case of false arrest or imprisonment if an arrest had not occurred and the arrest in this case occurred in Germany; hence the claim “arose” in a foreign country. Cf. Restatement of Conflict of Laws, § 377 (1934) (tort arises where last event necessary to liability occurs). The district court relied additionally on policy considerations it thought underlay the exception. Prosecution of the suit would require German witnesses and experts on German law to show on what basis plaintiff was actually arrested and detained; it was necessary to plaintiff’s case to show both that the arrest was without legal justification and that it was in fact caused by negligent or wrongful acts of the United States officials. The district judge thought that “[i]n accord with the intent of § 2680(k), the liability of the United States should not be dependent on these evidentiary difficulties and considerations of foreign law” and, accordingly, dismissed the claim against the United States.
B. The Foreign Country Exception, 28 U.S.C. § 2680(k) (1976)
We are not satisfied that if the act or omission complained of occurred in this country, the foreign country exception would apply under the decided cases or should apply given the language of the exception in the context of the Act, the overall approach of the Act to the analysis of liability for tort claims, the legislative intent which appears to underlie the exception, and the policy considerations which might inform our interpretation of the exception.
The entire scheme of the FTCA focuses on the place where the negligent or wrongful act or omission of the government employee occurred. 28 U.S.C. § 1346(b) (1976). Thus, if the negligent or wrongful act occurred in Oklahoma, but the only injury suffered occurred in Missouri, recovery may be had only if Oklahoma’s law (including its choice of law principles) renders a private individual liable under similar circumstances. Richards v. United States, 369 U.S. 1, 9-10, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962).
The district court concluded that under the foreign country exception the tort of false arrest cannot logically “arise” here when the arrest occurs abroad. Whatever its logic, however, the FTCA, for purposes of imposing liability, focuses on the place of the government employee’s act or omission. We think that the exception for claims arising in a foreign country should be read consonantly with the statutory scheme.
Decisions interpreting § 2680(k), the foreign country exception, are few. United States v. Spelar, 338 U.S. 217, 220-21, 70 S.Ct. 10, 94 L.Ed. 3 (1949), contains a discussion of what the Congress thought it was about when it made the exception. The discussion supports plaintiff’s argument that the exception does not apply if the wrongful acts or omissions complained of occur in the United States. Spelar quotes the following interchange during hearings on a predecessor bill (H.R. 6463, 77th Cong., 2d Sess. (1942)) in which “the [foreign] exemption provision assumed the form which was ultimately enacted into law.” 338 U.S. at 220, 70 S.Ct. at 12.
MR. SHEA [Assistant Attorney General, explaining the revised language suggested by the Attorney General]. Claims arising in a foreign country have been exempted from this bill, H.R. 6463, whether or not the claimant is an alien. Since liability is to be determined by the law of the situs of the wrongful act or omission it is wise to restrict the bill to claims arising in this country. This seems desirable because the law of the particular State is being applied. Otherwise, it will lead I think to a good deal of difficulty.
MR. ROBSION [Member of the House Committee on the Judiciary]. You mean by that any representative of the United States who committed a tort in England or some other country could not be reached under this?
MR. SHEA. That is right. That would have to come to the Committee on Claims in the Congress.
Id. at 221, 70 S.Ct. at 12, citing Tort Claims: Hearings on H.R. 5873 and H.R. 6463 before the House Comm, on the Judiciary, 77th Cong., 2d Sess. 35 (January 29, 1942).
No case to our knowledge has held the United States exempt from liability for acts or omissions occurring here which have their operative effect in another country. Indeed, to the extent the decided cases address the issue at all, they have come to a contrary conclusion. Leaf v. United States, 588 F.2d 733 (9th Cir. 1978) (section 2680(k) does not exempt U.S. from liability for negligence in this country which was alleged to have caused airplane damage in Mexico); In re Paris Air Crash of March 3, 1974, 399 F.Supp. 732, 737 (C.D.Cal.1975) (negligence in this country, personal injury in France). See also Roberts v. United States, 498 F.2d 520, 522 n.2 (9th Cir.), cert. denied, 419 U.S. 1070, 95 S.Ct. 656, 42 L.Ed.2d 665 (1974); Bryson v. United States, 463 F.Supp. 908 (E.D.Pa.1978).
It is entirely understandable that Congress should wish to avoid the risk of United States’ exposure to unreasonable liability under foreign law over which this country had no control. This we take to be the primary import of the exchange quoted in Spelar and set out above. It was not, we think, the difficulty of ascertaining foreign law but the prospect of unreasonably imposed liability which actuated the exemption. But this policy consideration has little bearing on a case where the acts or omissions complained of occurred in this country because in such cases liability will be determined under this country’s law. 28 U.S.C. § 1346(b) (1976).
It is true that the FTCA compels only application of this country’s choice of law principles, Richards, supra, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492, and not its substantive law of liability. Nevertheless prevailing conflicts principles in the District of Columbia and elsewhere (in the absence of countervailing statutory direction) permit application of an alternate substantive law when foreign law conflicts with a strong public policy of the forum. See generally Paulsen & Sovern, “Public Policy” in the Conflict of Laws, 56 Colum.L.Rev. 968 (1956). See also Restatement (Second) of Conflict of Laws § 6(2)(b) (1971) (relevant policies of the forum one of many factors in choice of law). Application of such principles will preserve the United States from unreasonably imposed liability.
The difficulties of obtaining evidence from abroad might have concerned Congress in enacting the foreign country exemption, but there is no evidence that it did so.
C. The Law Enforcement Officer Proviso, 28 U.S.C. § 2680(h) (1976)
Our conclusion that the claim is not exempt under § 2680(k) does not, however, end our inquiry. For, as already mentioned, the government argues that the newly broadened liability under § 2680(h) does not apply to officers who do not themselves make arrests, seize evidence, etc. Even if the § 2680(h) proviso does apply to such officers, the government continues, the “discretionary function” exception contained in § 2680(a) exempts the United States from liability for the actions complained of here. •
The application of § 2680(h) to persons like Sims who have been classified by the United States Civil Service as “criminal investigator [s]” even though their present duties do not involve frontline law enforcement work is a novel one, not solved by resort to the brief legislative history or to already decided cases. In this case the government stipulated that the USNCB was staffed professionally only by trained law enforcement personnel and Congress has been assured that requests for criminal information will be handled only by persons so trained. On the other hand, it is also admitted that the USNCB officers do not initiate or conduct investigations of their own but act primarily as conduits and screeners of information between foreign police departments and federal and state counterparts.
The Senate report on the amendment to § 2680(h) describes its purpose broadly:
The effect of this provision is to deprive the Federal Government of the defense of sovereign immunity in cases in which Federal law enforcement agents, acting within the scope of their employment, or under color of Federal law, commit any of the following torts: assault, battery, false imprisonment, false arrest, malicious prosecution or abuse of process. Furthermore, this provision should be viewed as a counterpart to the Bivens case and its progenty [sic], in that it waives the defense of sovereign immunity so as to make the Government independently liable in damages for the same type of conduct that is alleged to have occurred in Bivens (and for which that case imposes liability upon the individual Government officials involved).
This whole matter was brought to the attention of the Committee in the context of the Collinsville raids, where the law enforcement abuses involved Fourth Amendment constitutional torts. Therefore, the Committee amendment would submit the Government to liability whenever its agents act under color of law so as to injure the public through search and seizures that are conducted without warrants or with warrants issued without probable cause. However, the Committee’s amendment should not be viewed as limited to constitutional tort situations but would apply to any case in which a Federal law enforcement agent committed the tort while acting within the scope of his employment or under color of Federal law.
S.Rep. No. 588, 93rd Cong., 1st Sess. 3-4 (1973).
We deduce from this report an intent to “provid[e] a remedy against the Federal Government for innocent victims of Federal law enforcement abuses,” id. at 4, and we find no indication that it was not meant to cover the situation where law enforcement officers are assigned to duties that do not involve their actual participation in making arrests or conducting investigations. By defining “investigative or law enforcement officer” and by limiting the wrongs covered in the § 2680(h) exception to false arrest, false imprisonment, malicious prosecution or abuse of process, Congress set finite boundaries around the kind of law enforcement abuses for which it wished to make the government liable.
We are not inclined to read into the language which Congress used a narrower limitation on liability than that suggested by the plain meaning of the words. In our view Sims was an “investigative or law enforcement officer of the United States Government” within the meaning of the 1974 proviso. Whether the complaint otherwise states a claim for which the United States is not exempt from liability under § 2680(h) is a question we leave to the district court on remand.
D. The Discretionary Function Exemption, 28 U.S.C. § 2680(a) (1976)
The government asserts that the United States would have been immune from suit in any event pursuant to the statutory exception in § 2680(a) which provides that the United States shall not be liable for acts “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or any employee of the Government, whether or not the discretion involved, be abused.” 28 U.S.C. § 2680(a) (1976).
This “discretionary function exception” to the FTCA has spawned much litigation. After initial confusion following the Supreme Court’s broad construction of the exception in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), many courts, including our own, accepted a distinction based upon language in that case to the effect that “operational” duties as opposed to “planning” duties did not fall within the exception, even though the former inevitably required judgment and discretion. Thus in Eastern Airlines, Inc. v. Union Trust Co., 95 U.S.App.D.C. 189, 221 F.2d 62, aff’d mem. sub nom., United States v. Union Trust Co., 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 799 (1955), we decided that negligent acts of airport control tower operators were not within the exception. “[Djiscretion was exercised when it was decided to operate the tower, but the tower personnel had no discretion to operate it negligently.” 95 U.S.App.D.C. at 204, 221 F.2d at 77. The Supreme Court’s decision in Indian Towing Co. v. United States, 350 U.S. 61, 69, 76 S.Ct. 122, 126-27, 100 L.Ed. 48 (1955), offers support for such a distinction. In that case the Court ruled the government could be held liable under the FTCA for negligent operation of a lighthouse.
The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate a light on Chan-deleur Island and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in good working order; and, if the light did become extinguished, then the Coast Guard was further obligated to use due care to discover this fact and to repair the light or give warning that it was not functioning. If the Coast Guard failed in its duty and damage was thereby caused to petitioners, the United States is liable under the Tort Claims Act.
See also Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957) (United States might be held liable for negligent firefighting by Forest Service employees). See generally Reynolds, The Discretionary Function Exception of the Federal Tort Claims Act, 57 Geo.L.J. 81 (1968). In our own circuit application of the planning-operational test has resulted in decisions holding the United States liable where it negligently denied a medical certificate to an eligible pilot, Duncan v. United States, 355 F.Supp. 1167, 1170 (D.D.C. 1973), but immune for allegedly negligent implementation of a riot control plan, Monarch Ins. Co. of Ohio v. District of Columbia, 353 F.Supp. 1249, 1256-59 (D.D.C.1973), aff’d mem., 162 U.S.App.D.C. 96, 98, 497 F.2d 683-85, cert. denied, 419 U.S. 1021, 95 S.Ct. 497, 42 L.Ed.2d 295 (1974) (“Policy considerations directly related to objectives which are, in the strictest sense of the term, governmental or political pervade every phase of planning and executing a riot control program,” 353 F.Supp. at 1258), and immune for an administrator’s decision not to distribute to federally funded clinics promulgated guidelines concerning sterilization, Relf v. United States, 433 F.Supp. 423 (D.D.C.1977), aff’d mem., 593 F.2d 1371 (1979).
The multitude of cases applying the exception to a variety of fact situations are conveniently catalogued in Blessing v. United States, 447 F.Supp. 1160 (E.D.Pa.1978). Although the cases create more of a “patchwork quilt” than a “seamless web,” id. at 1167, there are persistent themes, e. g., holding the government responsible for any negligent execution of admittedly discretionary policy judgments where the decisions required for the execution did not themselves involve the balancing of public policy factors. Id. at 1179-80 n.28. Cases construing the exception in the law enforcement context have held it to exempt NLRB delay due to shortage of personnel in filing specification of back pay in connection with reinstatement order, J. H. Rutter Rex Mfg. Co. v. United States, 515 F.2d 97, 99 (5th Cir. 1975), cert. denied, 424 U.S. 954, 96 S.Ct. 1428, 47 L.Ed.2d 359 (1976); failure of U. S. Attorney to prosecute a wrongdoer, Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967); a State Department official’s advice to Puerto Rican officials that the United States did not object to the release to Venezuelan officials of a privately owned plane, Four Star Aviation v. United States, 409 F.2d 292 (5th Cir. 1969); and management of a crowd and surrounding campus population during the integration of a southern university, United States v. Faneca, 332 F.2d 872 (5th Cir. 1964), cert. denied, 380 U.S. 971, 85 S.Ct. 1327, 14 L.Ed.2d 268 (1965). On the other hand, the exception has been rejected as applied to an FBI agent’s on-the-spot decision to fire at a hijacked plane, Downs v. United States, 522 F.2d 990 (6th Cir. 1975); and failure to provide police protection to an endangered informant, Swanner v. United States, 309 F.Supp. 1183 (M.D.Ala.1970).
The Blessing court concluded from its survey of the field that the policy of the exception was to “prevent[] tort actions from becoming a vehicle for judicial interference with decisionmaking that is properly exercised by other branches of the government,” and that the exception exempts the United States from liability only where “the question is not negligence but social wisdom, not due care but political practicability, not reasonableness but economic expediency. Tort law simply furnishes an inadequate crucible for testing the merits of social, political, or economic decisions.” Id. at 1170.
On the present record there is no clear indication that the decisions by this USNCB official concerning the nature of the information transmitted abroad, including the status of an extradition request, were essentially “political,” “social” or “economic” or necessarily involved any policy-making function at all. Indeed the scope of the USNCB official’s discretion is disputed on this record; it is of course partly a question of law but also partly a question of fact, on which we do not feel the evidence is sufficiently undisputed for us to make the initial decision here. See Carter v. Carlson, 144 U.S.App.D.C. 388, 394, 447 F.2d 358, 364 (D.C.Cir. 1971), rev’d on other grounds sub nom., District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973); David v. Cohen, 132 U.S.App.D.C. 333, 336, 407 F.2d 1268,1271 (D.C.Cir. 1969). In short, whether the acts for which liability is here claimed were so fraught with foreign relations or other public policy considerations as to render them “discretionary” within the meaning of the FTCA cannot be summarily determined on this record.
Our conclusion that there is no clear out for the government on this record under the “discretionary exception” is bolstered
Question: Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Elton Ray BARNES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 71-1526.
United States Court of Appeals, Fifth Circuit.
July 9, 1971.
Elton R. Barnes, pro se.
Eldon B. Mahon, U. S. Atty., W. E. Smith, Asst. U. S. Atty., Fort Worth, Tex., for appellee.
Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
PER CURIAM:
Affirmed. See Local Rule 21.
. It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s Local Rule 9(c) (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5 Cir. 1969, 412 F.2d 981.
. See N.L.R.B. v. Amalgamated Clothing Workers of America, 5 Cir. 1970, 430 F.2d 966.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appel1_1_3
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
WRIGHT AERONAUTICAL CORPORATION et al. v. GENERAL MOTORS CORPORATION (ALLISON ENGINEERING DIVISION).
No. 8808.
Circuit Court of Appeals, Seventh Circuit.
March 9, 1948.
Rehearing Denied April 19, 1948.
LINDLEY, District Judge, dissenting in part.
Dale A. Bauer, of New York City, George I. Haight and M. K. Hobbs, both of Chicago, Ill., Theodore S. Kenyon, and W. Houston Kenyon, Jr., both of New York City, and Ralph G. Lockwood, of Indianapolis, Ind., for appellants.
Drury W. Cooper, of New York City, Harry W. Lindsey, Jr., of Chicago, Ill., and C. Blake Townsend, of New York City, for appellee.
Before SPARKS and KERNER, Circuit Judges, and LINDLEY, District Judge.
SPARKS, Circuit Judge.
Plaintiffs-appellants charged appellee with infringement of United States Patent No. 2,103,643 to Salomon, issued December 28, 1937, on an application filed March 31, 1933. It was alleged, and the court found, that the patent, at the times in issue, was owned by a Swiss corporation, hereinafter referred to as Redynam, and that Wright Aeronautical Corporation, hereinafter referred to as Wright, is the exclusive licensee for the aircraft engine field, and has been since the patent was issued.
The defendant-appellee, General Motors Corporation of Delaware, through its Allison Engineering Division, of Indianapolis, referred to hereinafter as Allison, manufactures radial, air-cooled aircraft engines including the engine alleged to infringe.
The issues raised were validity and non-infringement as to the claims sued on, namely, Nos. 3, 4, 5, 6, 7, 8, 10, 11, 13 and 18. After finding the facts specially and rendering its conclusions of law thereon, the court held there was no infringement as to any claim, but it did not pass upon the question of validity. From that ruling this appeal is prosecuted.
The patent is alleged by plaintiffs to be based upon an application filed in France on April 7, 1932, now French patent No. 748,-909. According to the present specifications, the patent here in issue is applicable to various types of machinery, stationary as well as movable, and allows the replacement of the usual fly wheels adapted to regularize the movement of machine shafts of such machinery. Its application in the airplane engine field only is here involved. The question is whether the bifilar type of vibration damper used by appellee infringes the claims in suit which the District Court found were limited to a damper of the unifilar type.
The court found the following facts, all of which are supported by substantial evidence. Allison is, and has been for many years, a well-known manufacturer of aircraft engines of the in-line, liquid-cooled, “V”-type, similar in those respects to automobile engines which have for a long time been manufactured by Cadillac and other General Motors Divisions. These Allison engines, incorporating the centrifugal vibration dampers which are here alleged to infringe the Salomon patent, were manufactured by Allison beginning as early as January 1937, and have been sold from shortly after that date to the present time, in ever increasing quantities. There has been no material change in the design, or construction of the accused Allison vibration dampers since they were first put out by Allison.
These Allison engines were sold to the British Purchasing Commission before the United States entered the war; but as regards the issues here, those engines are like all the other engines manufactured by Allision, beginning in January 1937, including those sold to the United States Army for use in its current fighter planes such as “P-38,” “P-51,” and others.
The invention of the patent in suit is characterized by a roller movable about a stub shaft, the presence of which so limits the mass of the roller that it is incapable of accomplishing the results accomplished by defendant’s bifilar damper.
All licenses granted by plaintiffs under the Salomon patent here in suit, included other patents not here in suit.
The claims in suit were all inserted in the Salomon application after the accused Allison damper was being manufactured and sold.
Proceedings which took place and actions which were taken by or on behalf of plaintiffs, before the Commissioner of Patents and by way of communications made to defendant and the industry generally, preclude plaintiffs from maintaining that the patent in suit is of such scope as to cover a bifilar vibration damper or balancer.
Defendant Allison’s construction is best shown in the physical device which is an actual damper with its attached crankshaft, taken out of an Allison engine just as it would be actually installed in a modern fighter airplane.
Both the construction and the operation of the accused Allison damper are different from any disclosure of the Salomon patent. The accused Allison damper comprises six separate centrifugal pendulum balancers, each one of which consists of a large external damping weight which is suspended by two small pins from the flange or web attached to the crankshaft. Each of the pins passes through a hole in the weight and also through a hole in the flange. The use of those two pins, for that purpose, causes it to be known as a “bifilar suspension” of the damping weight. Its operation is dependent upon both of the pins being present. If one pin were removed, the construction would be inoperative. It is a fact, however, that the pins do not themselves perform any useful damping function in the device. Their weight is too small to have any effect on the damper; and, aside from that, taken alone they would be tuned to the wrong frequency and hence could not, by themselves, perform any useful damping function in the defendant’s construction. Their weight is not even taken into account in the calculation.
Appellants contend that the court erroneously (1) limited the scope of the patent to the phases of the unifilar type; (2) found that the bifilar, utilized by defendant, is not equivalent to the one patented; held (3) that the presence of a stub shaft in the patented device is a necessary element of the invention; (4) that defendant employs only the construction of the prior art; (5) that the claims were so broadened in the Patent Office, after defendant’s accused device appeared, as to bar this action for infringement; (6) that the arguments addressed to the Patent Office and certain written communications addressed to defendant and others, by Rubissow, the authorized agent of the owners and licensees of the patent, precluded appellants from claiming that the accused device infringes.
At all times here involved it was well known that torsional vibrations in the form of successive twisting and untwisting effects in the crankshaft of a multiple-cyl-indered internal combustion engine are caused by successive explosions in the cylinders and that by reason thereof flexional vibrations due to “sagging” occur in the shaft. The .parties agree that the twisting and untwisting follow each other in rapid succession; that, in a modern aircraft engine such as defendant’s, there may be as many as 200 to 300 torsional oscillations per second, and that, if the oscillations are severe enough and repeated often enough, they may shatter the crankshaft. Consequently, in order to meet and counteract these dangers, torsional vibration “dampers” or “balancers” are attached to shafts of internal combustion engines, usually on the fly-wheel, which serve to reduce oscillation and vibration. So far as known, the modern airplane engine could not operate at presently required speeds in the absence of an efficiency device such as defendant employs.
It further seems uncontradicted that the art has long known three species of balan-cers or dampers. The three species referred to may be designated as friction, spring, and centrifugal pendulum dampers. The difference in achievements of each of the three is largely one of degree.
Friction dampers or balancers are discussed fully in the opinion of Clark v. Wright Aeronautical Corp., 2 Cir., 162 F. 2d 960, in which the court made clear the deficiency in this sort of balancer arising from friction which greatly detracts from the ultimate efficiency of such device, and held that friction devices did not anticipate later comparatively frictionless balancers and that their suggestion and adoption fell far short of furnishing the solution to the problems arising under modern high speeds.
In the second type of damper, the relatively free movement between the shaft and the masses of the balancer is resisted by springs which transmit to the weights the disturbing forces due to torsional vibrations of the shaft and transmit back to the shaft reaction forces. Such a device has a fixed natural frequency of vibration of its own and accordingly can eliminate only vibrations which have that same fixed frequency, and cannot eliminate, at all speeds, vibrations which vary in frequency with the changing speed of the engine. Spring bal-ancers have had only limited commercial use.
The third type of damper is that of the centrifugal pendulum damper or balancer, such as that prescribed by Salomon and those manufactured by Wright or Allison.
A centrifugal pendulum balancer consists of a weight suspended from and carried by a revolving shaft in such a way that it moves about a center eccentric to the shaft, so that when the shaft is rotated and goes into twisting vibration, and the weight swings out of its mid-position (in which it lies farthest away from the shaft), as a result of the vibration of the shaft, centrifugal force moves the weight back toward mid-position, just as gravity moves the ordinary clock pendulum back toward mid-position. It involves little friction and no springs. While a clock pendulum is periodic in its movement, i. e., makes each complete swing back and forth in the same time, a pendulum balancer is not periodic; rather, it is aperiodic, because it does not always make a complete swing back and forth in the same period of time. This is necessarily so because the period of swing depends on how fast the shaft is rotated. If it is rotating rapidly the balancer must swing back and forth in a much shorter period than when the shaft is rotating slowly. Salomon and some of his predecessors disclose such devices and both plaintiffs and defendant avail themselves of their use, but in a different manner.
The art has known for years both unifilar and bifilar pendulum balancers. A clock pendulum is said to be unifilar because it is suspended by one thread from one point. In this art it means any construction in which the bob weight swings or oscillates about a single point. The bifilar differs in that it corresponds in some respects to a pendulum in which each of two points of the swinging weight is suspended by a thread. In a unifilar pendulum, the unattached end of the one thread or cord travels through an arc while in the bifilar pendulum construction, such as the lawn swing, the platform does not tilt during the swinging but remains on even keel. Defendant’s balancer is a bifilar pendulum device and the balancer weight has the same sort of swinging movement as the platform of the lawn swing except that in actual operation the whole balancer is rotating with the engine crankshaft at the same time it is swinging. The devices of the prior Chenard and Walcker French patent No. 632,017, and the Sarazin patents are likewise bifilar.
It was largely upon this feature of mechanical contrivances that the issues turned in the District Court. We well know that the center of gravity is a point about which a body or mass is in balance. If the mass is pushed in line with the center of gravity, it will move in a straight line and not rotate ; but if it is pushed out of line with its center of gravity it will tend to rotate and, when it moves, it tries to go in a straight line. This is because of centrifugal force, which may become so powerful as to cause a fly-wheel to burst into pieces and fly in all directions. A pendulum balancer brings-the pendulum weight back to its mid-position just as force of gravity brings the pendulum back to its mid-position in any centrifugal pendulum. The device of the patent is carried on a revolving shaft and is-so constructed that centrifugal force necessarily holds it in mid-position in which its-weight lies farthest from the shaft. When the weight is set in motion by some disturbing force, it swings inwardly toward the center of the shaft and then the centrifugal force causes it to swing back.
Claims 3, 6, 7, 13 and 18, are copied in the margin, and are fairly representative of all claims in suit.
Salomon entitled his first application, on March 31, 1933, as an “Improvement in Devices Adapted to Eliminate Oscillation.” He stated in his application that he had invented certain new and useful improvements in devices adapted to eliminate or to reduce speed oscillations, vibrations and jerks (our emphasis). The stressed words were cancelled and in paragraph 5 of the present application appears the following:
“My invention provides the elimination of * * * oscillations, of vibrations and jerks through the mere play of transformations of kinetic energy * * * exerted on >:< * * 'filtering masses’ without * * * pivotal connections, springs, brakes or stops of any kind, so as to reduce to a minimum the friction arising.”
Here is a clearly expressed intention on the part of the patentee not to reduce to a minimum, but to eliminate oscillations, vibrations and jerks by reducing to a minimum, not by eliminating, the friction thus arising. It is under these circumstances that appellants urge that Salomon was the first to disclose that all oscillations could be eliminated by eliminating all friction. This suggested remedy may be a correct solution. However, this record discloses that no one, including plaintiffs and defendant, has ever been able to eliminate all friction, and for that reason, no doubt, no one has ever been able to eliminate all oscillations, vibrations and jerks. Certainly, neither Salomon nor Allison has done so.
The original application, as well as the present one, informs us of the intricacy and lack of efficiency of springs and fluids for such purpose because of their frictional action, which the applicant states was well known to the art. True, he does refer to “reduction” as well as elimination of friction in paragraphs 5 and 9 of the specification; however, the title in the original application, as well as in the patent, remains the same.
It must be remembered that an invention, in order to be patentable, must consist of more than an idea, or a mere thought. It must have been reduced to practice, and this Salomon has not done. According to the evidence here, those versed in this art, including the patentee, were well aware, at the time the original application was filed in this case, that springs and fluids should be eliminated, because the use of either would cause friction.
Salomon in both his original and his present application, stated that all these things could be accomplished by his unifilar disclosure, and he said nothing whatever with respect to a bifilar pendulum. However, Salomon and appellants urge that the patent disclosures cover a bifilar pendulum. We here place in juxtaposition Salomon’s Figure 4 and one of defendant’s damper weights as illustrative of their disclosures:
One of Six Aliison Damper Weights Taken from Deft’s £xh. HH.
All claims in issue except 13 and 18 are applicable to figure 4, of which claims plaintiff says claim 6 is typical: The numbers on Figure 4 refer to the following elements mentioned: 1 — shaft; 6 — cylindrical stubshaft, around which is arranged a torus-shaped recess, or guideway, limited by 6 and 7; 8 — a hollow roller or damping mass, with a very small play having a solid axis 10, around which is another torus-shaped guideway wherein a ball, 9, which is another damping mass, may move with a very small radial play. Six of the devices, as shown by Figure 4, encircle the engine shaft, as shown by Figure 8. He says this compound roller and ball system, which he refers to as a double pendulum, is equivalent to a bifilar pendulum. However, he adds that the use of element 9 is optional.
In the Allison device the letters refer to the following elements: A — damping weight or mass; BB — pins or rollers; C — flange; DD — holes in and through A and C. This weight does not move in any guideway or recess. It is pivotally suspended, by means of two pins or rollers BB from a circular web or flange C. The pins pass through holes DD in the flange and through corresponding holes in the damping weight. As in the patent, six of Allison’s devices, as shown by his Exhibit HH, likewise encircle the engine shaft. It is not denied that this constitutes the well known bifilar suspension, which had been known to this art for many years prior to any disclosures which Salomon ever made. He admitted this in the application, filed January 14, 1939, for his United States Patent No. 2,316,288, wherein, to corroborate his statements to that effect, he refers to the French bifilar patent, issued to Chenard and Walcker, No. 632,017 in 1927.
It would seem that the charge of infringement here made is largely if not entirely based on appellants’ characterization of one of Allison’s pins or rollers BB, as a damping weight and as equivalent to Salomon’s internal damping masses 8 and 9 in Figure 4. The District Court, however, found that the operation of Allison’s device is dependent upon both pins being present and would be inoperative if one were removed, and further that those pins do not perform any useful damping function in the device.
It is conceded by appellants’ expert that every figure in this patent in which any physical construction is shown embodies a “stub shaft.” See Fig. 4, Nos. 6 and 10. Stub shafts were not shown in most figures of Salomon’s corresponding French patent; however, as the District Court found, they are characteristic of the disclosures here. They are not used by Allison. The supposed advantage of them is to prevent the balls or rollers from dropping across from one side of the guideway to the other when the fly-wheel slows down to a point where centrifugal force is no longer effective to hold the damping weights in their intended effective places. To accomplish this, however, is to cause friction and to limit the damper weight to less than half the diameter of the cavity in which it is contained, because the stub shaft is always in the center. The uncontradicted evidence shows that a balancing weight of adequate mass to be of use in Allison’s engine could not be installed in Salomon’s structure, because of the presence of stub shafts.
It seems to be true that Sarazin, in 1931, was the first to disclose a bifilar pendulum to dampen torsional variations of a shaft, being upon hinges or moving on rollers. However, he confessed in his later patents that his earlier patent was a failure because it generated, not some friction, but too much friction. Clark, Attorney General, v. Wright Aeronautical Corporation, 2 Cir., 162 F.2d 960, 966. The court there said: “Even though in the case at bar we were to concede that the finally successful damper did contain those elements which Sarazin first brought together, it would not follow that he (Sarazin) deserved a patent, for he coupled them with another element which undid their combined value.” So is it with Salomon, in the case now before us. Appellants urge with much seriousness that Salomon in this disclosure was the first to discard what had previously been thought essential friction, whereas those skilled in the art taught that some friction was necessary, and was required in order to accomplish the desired result. A study of this very interesting subject convinces us that if any appreciable number of those skilled in the art ever taught the necessity of some friction in order to eliminate all oscillations (and we find none who do), it was done on the theory that some friction was unavoidable, and for that reason it should be reduced to a minimum. That is precisely the teaching of Salomon in this patent, yet, like Sarazin, he adds the use of other elements such as solid, granular and fluid masses each of which the art, including Salomon, then well knew causes friction. He also uses stub shafts which the court also found produce friction, and that finding is substantially supported by evidence. He discloses and describes both high and low friction and he fails to differentiate between them.
We think the patent discloses no bifilar pendulum, but it discloses two separate unifilar pendulums, one inside the other, which Salomon refers to as double pendulum. Bifilar does not mean two pendulums. It means two cords or filaments by means of which each bobweight, or dampening weight, swings. Salomon does not disclose such a construction, nor does he claim to do so. Moreover, he makes the use of ball 9, in figure 4, optional, which if omitted would completely destroy any basis for contention that such construction contains a bifilar pendulum.
The undisputed evidence discloses that neither Salomon nor any of his agents in procuring this patent, or in the trial of this cause in the District Court, ever expressed an appreciative word for a bifilar pendulum. Plaintiffs’ expert witness testified that the patent did not cover the use of a bifilar construction. Salomon was not present at that trial. However, his agent, Rubisow, Who was also the agent and promoter for plaintiff Redynam in practically all the countries of the world except France, testified at the trial and engineered the prosecution of this patent application to a successful termination in the Patent Office. There he was confronted with the Carter British patent to which he responded: “Sal-omon is not interested in the bifilar suspension. He has a much more simple solution than the ‘bifilar’ for the reduction of 'high frequency oscillations. Therefore, he quite willingly leaves the bifilar suspension to others; that is a useless and injurious complication.” To the Commissioner he also stated: “Salomon, in order to reduce the friction as much as possible, has his multiple masses roll themselves on the guideway without any intermediary parts such as rollers, cylinders or articulations.”
To the citation of Sarazin he said: “Sarazin never has his movable masses themselves roll on a guideway without any rollers, which is one of the characteristics of the Salomon movable masses.” This statement was made to the Commissioner on April 6, 1937, and just two days later, by supplemental amendment, Salomon for the first time, presented any of the claims in suit. He then presented claims 3, 4 and 5 of the patent, in an admitted attempt to put in claims somewhat broader than any theretofore allowed, but still on the basis of what Rubissow had said to the Commissioner and within two days after his submission. Nothing that Rubissow said to the Commissioner was ever retracted or corrected. All other claims in suit were inserted still later, and none were presented or allowed except upon the basis of, and after the making of, those representations to the Commissioner. The record shows that both Salomon and the plaintiffs’ officers had reprimanded Rubissow for what he had there said, but neither of them made any effort to correct it. From this it would seem that the patentee and his agent thus made an interpretation of his disclosures and claims which the patentee will not be permitted to ignore. Dwight & Lloyd Sintering Co. Inc. v. Greenawalt, 2 Cir., 27 F.2d 823; Atkins v. Gordon, 7 Cir., 86 F.2d 595; and Thomas v. Simmons Co., 7 Cir., 126 F.2d 743. By this action it seems clear to us that the patentee and his representative took advantage of the ambiguous wording to insert the claims against bifilar constructions, suspended on rollers, in order to secure the claims over the Sarazin reference, just because he told the Commissioner that the patent or the claims did not cover them.
Substantially the same representations were disseminated in thousands of letters throughout the industry by Rubissow acting as Salomon’s patent promoter and as agent for the Swiss plaintiff and its alleged French or Luxemburg predecessors. These circulars were widely circulated as a part of Rubissow’s promotion plans in attempting to sell licenses under the Salomon patents, for which he received a 35% commission on all royalties collected. After the examination of Rubissow by the court, it indicated very strongly that Rubissow was not greatly concerned about the truth of any statement he made to any customer of the Salomon patent. The record further discloses that Salomon was at all times supplied with copies of the material put out by Rubissow. The only answer to such contention is that Allison could not have been greatly misled because it was already in production.
It is quite true that Allison was already in production “in ever increasing quantities,” in 1937, which went not only to the British war effort but also to the United States war effort in the form of production for its Army Air Force in some of its leading fighter planes. By reason of this fact, if the patent were valid and infringed, the United States Government would be subject to suit in the Court of Claims as a contributory infringer. This fact alone, of course, is no more determinative of this issue than it would be determinative in the case of any other contributory infringer, but it is entitled to consideration, with all the other evidence, in determining the credibility and the motive of the witnesses participating therein.
One of those letters was received by the appellee, General Motors. It was written February 7, 1938, more than four years after this complaint was filed. It covers four printed record pages and contains the following language:
“I beg to inform you that I am the exclusive representative for the negotiation throughout England, America and other countries, of the license rights regarding the * * * Salomon patents. * * *
“These patents fully control the market of dynamic dampers of any kind using free masses, rolling * * * substantially frictionless * * * or the like, acting under the influence of restoring forces provided by centrifugal forces. These dynamic dampers * * * eliminate all vibrations, jerks and oscillations * * *.
“ * * * If you are interested by the ‘bifilar suspension’ we would draw your attention to the fact that this form in itself cannot be validly protected being anticipated by the Chenard Walcker patents published in 1927 (No. 604,040 France and No. 458,463 Germany) which patents are expired.
“The licenses which we grant give full and valid protection in accordance with the Salomon patents.” (Our emphasis.) It is quite evident that the Chenard-Walcker French patent just referred to is erroneously numbered No. 604,040 and should be No. 632,017. The latter fully corresponds in all other respects with Rubissow’s description, and is relied upon by appellee.
We think that none of the claims in issue read upon defendant’s bifilar construction either verbally or substantively.
From the evidence it clearly appears that no testifying expert ever saw a construction of Salomon’s disclosures under this patent alone. It is also clear that Salo-mon does not recommend the use of a bifilar construction. It would seem equally clear that appellants have no desire to use a bifilar system. Their apparent intention is to continue to use the unifilar construction, and prevent their competitors from using the bifilar, which is in no sense an equivalent to the unifilar. Appellee is not here seeking a patent on the bifilar; it is merely defending against a charge of infringement of the unifilar.
Judgment affirmed.
Claim 3. “A system for damping oscillations in a rotary shaft, comprising a plurality of autonomous movable masses on which is formed a plurality of bearing surfaces forming part of the movable masses, guideways cooperating with each of said bearing surfaces and means whereby the shaft carries the guideways along with it in its rotation, each mass being adapted to rock freely, autonomously, unobstructedly and unrestrainedly with substantial zero friction under the combined action of the centrifugal forces produced by the rotation of the shaft and of the disturbing oscillations acting on said shaft while the bearing surface of each mass, moves over its guideway, some of said masses being at different distances from the shaft, having different weights and following different guideways.”
Claim 6. “Means for damping oscillations in a rotatable shaft comprising a curved guideway carried by and rotatable with the shaft, said guideway being eccentric with respect to the axis of rotation of said shaft, and two relatively movable members, one said member having substantially frictionless rolling relation with said guideway and the other with said member having substantially fractionless rolling engagement with the first said member, one, at least, of said members constituting a damping mass.
Claim 7. “Means for damping oscillations in a rotatable shaft comprising a first member movable relative to said shaft, a curved guideway carried by and rotatable with the shaft, said guideway being eccentric with respect to the axis of rotation of said shaft, and a second member having substantially frictionless rolling engagement with both the first said member and the guideway, one, at least, of said members constituting a damping mass.”
Claim 13. “Means for damping oscillations in a rotatable shaft comprising a part fixed to and rotatable with said shaft, said part being provided with at least one arcuate guideway the center of curvature of which is eccentric to the axis of rotation of said shaft, and -a freely rolling structurally integral damping mass movable substantially friction-lessly along said guideway in the direction of and in response to shaft vibrations.”
Claim 18. “Means for damping oscillations in a rotatable shaft comprising a part fixed to and rotatable with said shaft, said part being provided with at least one arcuate guideway the center of curvature of which is eccentric to the axis of rotation of said shaft, and a structurally integral damping mass freely movable substantially frictionlessly along said guideway in the direction of and in response to shaft vibrations, and in response to centrifugal force.”
“6. Means for damping oscillations in a rotatable shaft comprising a curved guideway carried by and rotatable with the shaft, said guideway being eccentric with respect to the axis of rotation of said shaft, and two relatively movable members, one said member having substantially frictionless rolling relation with said guideway and the other said member having substantially frictionless rolling engagement with the first said member, one, at least, of said members constituting a damping mass.”
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_respond1_3_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 "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.
ST. ANTHONY HOSPITAL SYSTEMS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and St. Anthony’s Federation of Nurses and Health Professionals, Intervenor.
No. 80-1968.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted May 14, 1981.
Decided Aug. 4, 1981.
Rehearing En Banc Granted Jan. 4,1982.
Earl K. Madsen, Golden, Colo. (Lawrence W. Marquess, Golden, Colo., with him on the brief), of Bradley, Campbell & Carney, Golden, Colo., for petitioner.
Charles P. Donnelly, Washington, D. C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and John G. Elligers, Atty., N. L. R. B., Washington, D. C., with him in the brief), for respondent.
Michael Radzilowsky, Chicago, 111. (Lawrence A. Poltrock and Stephen G. Daday, Chicago, 111., with him on the brief), of Dejong, Poltrock & Giampietro, Chicago, 111., for intervenor.
Before BARRETT and LOGAN, Circuit Judges, and O’CONNOR, District Judge .
Honorable Earl E. O’Connor of the United States District Court for the District of Kansas, sitting by designation.
LOGAN, Circuit Judge.
St. Anthony Hospital Systems petitions for review of a decision and order of the National Labor Relations Board (NLRB or Board) finding the hospital engaged in unfair labor practices by refusing to bargain with St. Anthony’s Federation, of Nurses and Health Professionals/AFT/FNHP, CFT, AFL-CIO (the union). The only issues raised on appeal are whether the Board (1) unconstitutionally asserted jurisdiction over the hospital, which is argued to be exempt under the First Amendment from governmental regulation because it is owned and operated by the Roman Catholic Church, (2) erred in ruling that a unit composed only of registered nurses is an appropriate bargaining unit under section 9(b) of the National Labor Relations Act (NLRA), 29 U.S.C. § 159(b), and (3) erred in holding that individuals classified as Staff Nurse I were not supervisors within the meaning of section 2(11) of the NLRA, 29 U.S.C. § 152(11).
St. Anthony Hospital Systems (St. Anthony), consisting of a main or central building and a satellite facility, is a non-profit medical institution owned and operated by the Sisters of the Order of St. Francis, a Roman Catholic Order. In 1979 the union filed a representation petition with the NLRB, seeking certification as the exclusive bargaining representative of all nonsupervisory registered nurses employed by the hospital. Following a hearing at which St. Anthony unsuccessfully challenged the appropriateness of the requested bargaining unit, the Board’s regional director issued a direction of election in the registered nurse unit. The Board denied St. Anthony’s request for review. A majority of the eligible employees voted in favor of representation by the union, following which the director certified the union as the exclusive collective bargaining representative for the hospital’s professional registered nurse employees. St. Anthony has obtained judicial review of the unit determination by refusing to bargain with the union. See Magnesium Casting Co. v. NLRB, 401 U.S. 137, 139, 91 S.Ct. 599, 600, 27 L.Ed.2d 735 (1971); Osteopathic Hosp. Founders Ass’n v. NLRB, 618 F.2d 633, 640 (10th Cir. 1980). In its answer to the complaint issued by the General Counsel of the NLRB, St. Anthony claimed the Board’s assertion of jurisdiction was unconstitutional on the ground that the hospital is a religious organization exempt from intrusive governmental regulation under the First Amendment. It also denied that the union was a proper labor organization under the NLRA, challenged the appropriateness of the unit determination, and objected to the inclusion of Staff Nurse I employees in the bargaining unit, claiming they were supervisors within the meaning of 29 U.S.C. § 152(11). The Board granted the General Counsel’s motion for summary judgment, ordering St. Anthony to cease and desist from its unfair labor practices and directing it to bargain collectively with the union. The case is before this Court on St. Anthony’s petition for review of the Board’s order and the Board’s application for enforcement. The union is present as intervenor.
The record indicates that St. Anthony failed to object to jurisdiction during the representation proceeding and first asserted its First Amendment challenge to jurisdiction in the unfair labor practice proceedings before the Board. Apparently relying on section 102.67(f) of its Rules and Regulations, 29 C.F.R. § 102.67(f) (1980), the Board determined St. Anthony was not entitled to litigate the constitutional issue which could have been, but was not, raised in the prior representation proceeding. In NLRB v. Peyton Fritton Stores, Inc., 336 F.2d 769, 770 (10th Cir. 1964), we held that while the statutory jurisdiction of the Board may be challenged at any time, “the facts upon which the Board determines it has jurisdiction may be challenged only upon timely exception, in the absence of which the Board’s findings are not open to attack in the proceeding for enforcement.” (Emphasis added.) The Board’s non-reliti-gation rule protects the integrity of the administrative process by requiring a party to develop all arguments and present all available, relevant evidence at the representation proceeding, the first instance in which the Board exercises jurisdiction. It would indeed be a waste of time, money, and effort if an employer could remain silent on this issue throughout the representation proceeding, refuse to bargain after certification, then ultimately defeat unionization on constitutional grounds asserted for the first time in the ensuing unfair labor practice proceeding. We affirm the Board’s determination that the First Amendment issue, having been untimely raised, was not cognizable by the Board in the underlying unfair labor practice hearing. The issue is therefore not properly before this Court on St. Anthony’s petition for review. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162, 61 S.Ct. 908, 917, 85 L.Ed. 1251 (1941). Cf. St. Elizabeth Community Hosp. v. NLRB, 626 F.2d 123 (9th Cir. 1980) (First Amendment challenge to jurisdiction was timely only because raised in representation proceeding and not deferred until the enforcement proceedings).
The issues concerning whether the nurses should be a separate bargaining unit and whether those classified as Nurse I were supervisors were raised before the Regional Director and the Board in the representation proceedings and may be reviewed here. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 154, 61 S.Ct. 908, 913, 85 L.Ed. 1251 (1941); NLRB v. Jackson Farmers, Inc., 432 F.2d 1042 (10th. Cir. 1970), cert. denied, 401 U.S. 955, 91 S.Ct. 974, 28 L.Ed.2d 238 (1971). The Board has been granted broad discretion in determining appropriate bargaining units, and its decisions will be set aside only if shown to be arbitrary or capricious. NLRB v. Dewey Portland Cement Co., 336 F.2d 117, 119 (10th Cir. 1964). Hence, it is our function on review to determine whether the Board, when exercising the wide discretion committed to it, has stayed within the purview of the authorizing statutes. NLRB v. Groendyke, 372 F.2d 137, 140 (10th Cir. 1967), cert. denied, 397 U.S. 935, 90 S.Ct. 944, 25 L.Ed.2d 116 (1970). In granting the General Counsel’s motion for summary judgment and affirming the Regional Director’s decision, the Board clearly seems to have accepted the director’s reasoning, based on Mercy Hospitals of Sacramento, Inc., 217 N.L.R.B. 765 (1975), and Allegheny General Hospital, 239 N.L.R.B. 872 (1978), “that a unit restricted to registered nurses is a presumptively appropriate one,” and that in this case “the presumption . . . has not been overcome by the Employer’s evidence.” R.Vol. V at 3244. See id. at 3311. Acknowledging NLRB v. St. Francis Hospital of Lynwood, 601 F.2d 404 (9th Cir. 1979), the Regional Director and the Board applied a rebuttable presumption that the nurse unit was appropriate. Nevertheless, we believe the opinions clearly do not go far enough in following the congressional directive. See R.Vol. V at 3244-45, 3311-12.
On the appropriate unit issue, the case at bar is identical in all significant respects to Presbyterian/St. Luke’s Medical Center v. NLRB, 653 F.2d 450 (10th Cir. 1981), in which we held the Board’s application of the rebuttable presumption both impermissibly shifts the burden of persuasion and violates Congress’ directive to avoid proliferation of bargaining units in the health care industry. Our holding in Presbyterian/St. Luke’s Medical Center is fully applicable to this case. We hold the Board’s unit determination, based on the presumption of appropriateness and a duty the employer to overcome it, improperly relieved the General Counsel of the burden to establish that an unfair labor practice occurred. Because our holding on this issue renders the Board’s order unenforceable, we find it unnecessary to address St. Anthony’s remaining contention that the Board improperly included Staff Nurse I employees in the bargaining unit. in
The petition for review is granted. The cross-application for enforcement is denied. The cause is remanded for further proceedings consistent with this opinion.
It is so ordered.
. 29 C.F.R. § 102.67(f) provides in pertinent part:
“(f) ... Failure to request review shall preclude such parties from relitigating, in any related subsequent unfair labor practice proceeding, any issue which was, or could have been, raised in the representation proceeding. Denial of a request for review shall constitute an affirmance of the regional director’s action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding."
(Emphasis added.)
Question: This question concerns the first 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_r_nonp
|
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 "groups and associations". 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.
Melvin JACKSON, Appellant, v. UNITED STATES of America, Appellee.
No. 17807.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 18, 1963.
Decided Dec. 12, 1963.
Petition for Rehearing en Banc Denied May 25, 1964.
Mr. Forbes W. Blair, Washington, D. C. (appointed by this court), for appellant.
Mr. John A. Terry, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and William H. Collins, Jr., Asst. U. S. Attys., were on the brief, for appellee.
Before Fahy, Washington and Wright, Circuit Judges.
PER CURIAM.
This is an appeal from a conviction of second degree murder. Able court-appointed counsel urges a number of contentions, which we have carefully considered. But we find no error affecting substantial rights. The judgment of the District Court will be
Affirmed.
Circuit Judge WRIGHT took no part in the consideration or decision of this case.
Question: What is the total number of respondents in the case that fall into the category "groups and associations"? Answer with a number.
Answer:
|
songer_r_natpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellee, v. Elam Remanuel TEMPLE, Appellant.
No. 9645.
United States Court of Appeals Fourth Circuit.
Argued March 1, 1965.
Decided July 2, 1965.
John W. Hinsdale, Raleigh, N. C., for appellant.
Alton T. Cummings, Asst. U. S. Atty. (Robert H. Cowen, U. S. Atty., on brief), for appellee.
Before SOBELOFF and BOREMAN, Circuit Judges, and BUTZNER, District Judge.
SOBELOFF, Circuit Judge:
At a pretrial conference on a case in which Elam Remanuel Temple appeared as counsel for a plaintiff he was ordered to file a brief before August 1, 1963. When that deadline passed without his filing the required brief, opposing counsel moved to dismiss for failure to prosecute. Temple then made reply in writing, asserting that his failure to file was due to illness and he submitted his brief on August 7.
The cause came on for hearing on August 12, 1963, the date originally set, at which time Temple repeated, this time in open court, that his failure to file a timely brief was occasioned by his illness. The Judge accepted this statement as true, permitted the brief to be filed, and proceeded with the hearing in normal course. During the following year, however, government agents investigating a collateral matter came across evidence indicating that Temple had not been ill as claimed during the period in question. As a result of this discovery an order was served on Temple in August, 1964, to show cause why he should not be cited for contempt. This was well within the applicable five-year period allowed by the statute of limitations. 18 U.S.C.A. § 3282. The same Judge to whom Temple had offered his excuse for the late filing of the brief held a hearing on the contempt charge. He found Temple guilty of criminal contempt and sentenced him to six months in jail.
The defendant made a demand for particulars, seeking disclosure of the evidence to be presented by the Government in the contempt proceeding. The demand was denied by the presiding Judge. Since all of the documentary evidence used by the Government was voluntarily disclosed to the defendant’s counsel before trial, it is unnecessary to decide whether the failure to allow the bill of particulars constituted error. It certainly was not prejudicial.
The power of a federal court to punish for contempt is limited by statute. Contempt includes “misbehavior by any person” in the court’s presence. 18 U.S.C.A. § 401(1). Lying to a judge is certainly misbehavior in the court’s presence and therefore punishable under section 401.
The defendant having failed to take the stand, the Judge, at the close of the testimony, commented as follows:
“Now, he knows whether he was ill or not. Above every other person on earth, he knows; and though he is not compelled to testify, he remains silent and gives no explanation of what his condition was. I am sure in my own mind that if I were charged with giving a false impression to a court that the first witness that I would insist on having the privilege of testifying to when my case was called would be myself so that I might be able to testify as to exactly what the facts were.
“I realize he is not compelled to testify. Neither can he be directed to go to the witness stand to testify, but surely in a contemptuous proceeding if it would be upon him he should tell and not only tell but gladly tell and truthfully tell what his position was. He can.”
The Judge was certainly correct in stating that the defendant in a criminal contempt proceeding cannot be compelled to testify against himself. See Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444, 31 S.Ct. 492, 55 L.Ed. 797 (1911); Cliett v. Hammonds, 305 F.2d 565, 570 (5th Cir. 1962). While recognizing the defendant’s right to remain silent, the Judge evidently thought he was justified in treating this silence as an indication of guilt. Such a practice has since been ruled invalid by the Supreme Court. Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (April 28, 1965). There it was held that a trial judge may not charge the jury that they are free to consider the defendant’s silence and draw an unfavorable inference therefrom. If a judge is not permitted so to charge a jury he may not, when acting as the trier of facts, draw unfavorable inferences from the defendant’s silence, for he thereby “cuts down on the privilege by making its assertion costly.” Supra, 380 U.S. at p. 614, 85 S.Ct. at p. 1233. We therefore must reverse the decision and order a new trial.
As an additional ground for reversal Temple contends that it was impermissible for the Judge to preside at the contempt hearing because evidence was introduced indicating that Temple had made an insulting and derogatory remark about the Judge in a private conversation outside the court. This remark was not the basis of the contempt charge, and the Judge had no knowledge of it in advance of the hearing and therefore no opportunity to step aside, as he doubtless would have done in keeping with the spirit of Rule 42(b), Fed.R.Crim.P. Since the testimony about the disrespectful characterization of the Judge has been brought out, we think it best that the case be retried before another judge. There is no occasion here to consider the remaining contention that the six-month sentence is in any event inordinately severe for the offense. Nevertheless, we think it not amiss to call attention to the Supreme Court’s admonition in Green v. United States, 356 U.S. 165, 188, 78 S.Ct. 632, 645, 2 L.Ed.2d 672 (1958):
“We take this occasion to reiterate our view that in the areas where Congress has not seen fit to impose limitations on the sentencing power for contempts the district courts have a special duty to exercise such an extraordinary power with the utmost sense of responsibility and circumspection. The ‘discretion’ to punish vested in the District Courts by § 401 is not an unbridled discretion. Appellate courts have here a special responsibility for determining that the power is not abused, to be exercised if necessary by revising themselves the sentences imposed. This Court has in past cases taken pains to emphasize its concern with the use to which the sentencing power has occasionally been put, both by remanding for reconsideration of contempt sentences in light of factors it deemed important see Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95; Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415, and by itself modifying such sentences. See United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884. The answer to those who see in the contempt power a potential instrument of oppression lies in assurance of its careful use and supervision * *
Reversed and remanded.
. Possibly the facts alleged also constitute a violation of 18 U.S.C.A. § 401(2) which includes in the definition of contempt, “[m]isbehavior of any of its [the court’s] officers in their official transactions.” But as this subsection was not referred to below, we do not pass on its applicability.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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sc_petitionerstate
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52
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
PEARSON et al. v. CALLAHAN
No. 07-751.
Argued October 14, 2008
Decided January 21, 2009
Alxto, J., delivered the opinion for a unanimous Court.
Peter Stirba argued the cause for petitioners. With him on the briefs were Meb W. Anderson and Orín S. Kerr.
Malcolm L. Stewart argued the cause for the United States as amicus curiae urging reversal. With him on the brief were former Solicitor General Garre, Acting Assistant Attorneys General Friedrich' and Katsas, Deputy Solicitor General Dreeben, Ann Wallace, Barbara L. Herwig, and Edward Himmelfarb.
Theodore P. Metzler, Jr., argued the cause for respondent. With him on the brief were Robert A. Long, Jr., and James K. Slavens.
Briefs of amici curiae urging reversal were filed for the State of Illinois et al. by Lisa Madigan, Attorney General of Illinois, Michael A Scodro, Solicitor General, and Jane Elinor Notz, Deputy Solicitor General, by Roberto J. Sdnchez-Ramos, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Talis J. Colberg of Alaska, Dustin McDaniel of Arkansas, Edmund G. Brown, Jr., of California, John W Suthers of Colorado, Bill Mc-Collum of Florida, Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Steve Carter of Indiana, Martha Coakley of Massachusetts, Michael A. Cox of Michigan, Jim Hood of Mississippi, Mike McGrath of Montana, Catherine Cortez Masto of Nevada, Kelly A Ayotte of New Hampshire, Anne Milgram of New Jersey, W. A. Drew Edmondson of Oklahoma, Thomas W. Corbett, Jr., of Pennsylvania, Patrick C. Lynch of Rhode Island, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Robert E. Cooper, Jr., of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Robert M. McKenna of Washington, Darrell V. McGraw, Jr., of West Virginia, J. B. Van Hollen of Wisconsin, and Bruce A Salzburg of Wyoming; and for the National Association of Counties et al. by Richard Ruda and Lawrence Rosenthal.
Briefs of amici curiae urging affirmance were filed for the ACLU by Steven R. Shapiro and Adam B. Wolf; for the National Association of Criminal Defense Lawyers by Jeffrey A Lamken and Barbara Bergman; for the National Campaign to Restore Civil Rights by Beth S. Brinkmann, Seth M. Galanter, and Michael Gerard; and for the National Police Accountability Project et al. by Michael Avery, John Burton, Stephen M. Latimer, David Rudovsky, and Jeffrey L. Needle.
Briefs of amici curiae were filed for the Liberty Legal Institute by Kelly J. Shackelford; and for the Texas Association of School Boards by Ramón G. Viada III.
Justice Alito
delivered the opinion of the Court.
This is an action brought by respondent under Rev. Stat. § 1979, 42 U. S. C. § 1983, against state law enforcement officers who conducted a warrantless search of his house incident to his arrest for the sale of methamphetamine to an undercover informant whom he had voluntarily admitted to the premises. The Court of Appeals held that petitioners were not entitled to summary judgment on qualified immunity grounds. Following the procedure we mandated in Saucier v. Katz, 533 U. S. 194 (2001), the Court of Appeals held, first, that respondent adduced facts sufficient to make out a violation of the Fourth Amendment and, second, that the unconstitutionality of the officers’ conduct was clearly established. In granting review, we required the parties to address the additional question whether the mandatory procedure set out in Saucier should be retained.
We now hold that the Saucier procedure should not be regarded as an inflexible requirement and that petitioners are entitled to qualified immunity on the ground that it was not clearly established at the time of the search that their conduct was unconstitutional. We therefore reverse.
I
A
The Central Utah Narcotics Task Force is charged with investigating illegal drug use and sales. In 2002, Brian Bartholomew, who became an informant for the task force after having been charged with the unlawful possession of methamphetamine, informed Officer Jeffrey Whatcott that respondent Afton Callahan had arranged to sell Bartholomew methamphetamine later that day.
That evening, Bartholomew arrived at respondent’s residence at about 8 p.m. Once there, Bartholomew went inside and confirmed that respondent had methamphetamine available for sale. Bartholomew then told respondent that he needed to obtain money to make his purchase and left.
Bartholomew met with members of the task force at about 9 p.m. and told them that he would be able to buy a gram of methamphetamine for $100. After concluding that Bartholomew was capable of completing the planned purchase, the officers searched him, determined that he had no controlled substances on his person, gave him a marked $100 bill and a concealed electronic transmitter to monitor his conversations, and agreed on a signal that he would give after completing the purchase.
The officers drove Bartholomew to respondent’s trailer home, and respondent’s daughter let him inside. Respondent then retrieved a large bag containing methamphetamine from his freezer and sold Bartholomew a gram of methamphetamine, which he put into a small plastic bag. Bartholomew gave the arrest signal to the officers who were monitoring the conversation, and they entered the trailer through a porch door. In the enclosed porch, the officers encountered Bartholomew, respondent, and two other persons, and they saw respondent drop a plastic bag, which they later determined contained methamphetamine. The officers then conducted a protective sweep of the premises. In addition to the large bag of methamphetamine, the officers recovered the marked bill from respondent and a small bag containing methamphetamine from Bartholomew, and they found drug syringes in the residence. As a result, respondent was charged with the unlawful possession and distribution of methamphetamine.
B
The trial court held that the warrantless arrest and search were supported by exigent circumstances. On respondent’s appeal from his conviction, the Utah attorney general conceded the absence of exigent circumstances, but urged that the inevitable discovery doctrine justified introduction of the fruits of the warrantless search. The Utah Court of Appeals disagreed and vacated respondent’s conviction. See State v. Callahan, 2004 UT App. 164, 93 P. 3d 103. Respondent then brought this damages action under 42 U. S. C. § 1983 in the United States District Court for the District of Utah, alleging that the officers had violated the Fourth'Amendment by entering his home without a warrant. See Callahan v. Millard Cty., No. 2:04-CV-00952, 2006 WL 1409130 (2006).
In granting the officers’ motion for summary judgment, the District Court noted that other courts had adopted the “consent-once-removed” doctrine, which permits a warrant-less entry by police officers into a home when consent to enter has already been granted to an undercover officer or informant who has observed contraband in plain view. Believing that this doctrine was in tension with our intervening decision in Georgia v. Randolph, 547 U. S. 103 (2006), the District Court concluded that “the simplest approach is to assume that the Supreme Court will ultimately reject the [consent-once-removed] doctrine and find that searches such as the one in this case are not reasonable under the Fourth Amendment.” 2006 WL 1409130, *8. The court then held that the officers were entitled to qualified immunity because they could reasonably have believed that the consent-once-removed doctrine authorized their conduct.
On appeal, a divided panel of the Tenth Circuit held that petitioners’ conduct violated respondent’s Fourth Amendment rights. Callahan v. Millard Cty., 494 F. 3d 891, 895-899 (2007). The panel majority stated that “[t]he ‘consent-once-removed’ doctrine applies when an undercover officer enters a house at the express invitation of someone with authority to consent, establishes probable cause to arrest or search, and then immediately summons other officers for assistance.” Id., at 896. The majority took no issue with application of the doctrine when the initial consent was granted to an undercover law enforcement officer, but the majority disagreed with decisions that “broade[n] this doctrine to grant informants the same capabilities as undercover officers.” Ibid.
The Tenth Circuit panel further held that the Fourth Amendment right that it recognized was clearly established at the time of respondent’s arrest. Id., at 898-899. “In this case,” the majority stated, “the relevant right is the right to be free in one’s home from unreasonable searches and arrests.” Id., at 898. The Court determined that, under the clearly established precedents of this Court and the Tenth Circuit, “warrantless entries into a home are per se unreasonable unless they satisfy the established exceptions.” Id., at 898-899. In the panel’s words, “the Supreme Court and the Tenth Circuit have clearly established that to allow police entry into a home, the only two exceptions to the warrant requirement are consent and exigent circumstances.” Id., at 899. Against that backdrop, the panel concluded, petitioners could not reasonably have believed that their conduct was lawful because petitioners “knew (1) they had no warrant; (2) [respondent] had not consented to their entry; and (3) [respondent’s] consent to the entry of an informant could not reasonably be interpreted to extend to them.” Ibid.
In dissent, Judge Kelly argued that “no constitutional violation occurred in this case” because, by inviting Bartholomew into his house and participating in a narcotics transaction there, respondent had compromised the privacy of the residence and had assumed the risk that Bartholomew would reveal their dealings to the police. Id., at 903. Judge Kelly further concluded that, even if petitioners’ conduct had been unlawful, they were nevertheless entitled to qualified immunity because the constitutional right at issue — “the right to be free from the warrantless entry of police officers into one’s home to effectuate an arrest after one has granted voluntary, consensual entry to a confidential informant and undertaken criminal activity giving rise to probable cause” — was not “clearly established” at the time of the events in question. Id., at 903-904.
As noted, the Court of Appeals followed the Saucier procedure. The Saucier procedure has been criticized by Members of this Court and by lower court judges, who have been required to apply the procedure in a great variety of cases and thus have much firsthand experience bearing on its advantages and disadvantages. Accordingly, in granting certiorari, we directed the parties to address the question whether Saucier should be overruled. 552 U. S. 1279 (2008).
II
A
The doctrine of qualified immunity protects government officials “from liability for civil damages insofar as 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 (1982). Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official’s error is “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Groh v. Ramirez, 540 U. S. 551, 567 (2004) (Kennedy, J., dissenting) (quoting Butz v. Economou, 438 U. S. 478, 507 (1978), for the proposition that qualified immunity covers “mere mistakes in judgment, whether the mistake is one of fact or one of law”).
Because qualified immunity is “an immunity from suit rather than a mere defense to liability... it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U. S. 511, 526 (1985) (emphasis deleted). Indeed, we have made clear that the “driving force” behind creation of the qualified immunity doctrine was a desire to ensure that “ ‘insubstantial claims’ against government officials [will] be resolved prior to discovery.” Anderson v. Creighton, 483 U. S. 635, 640, n. 2 (1987). Accordingly, “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).
In Saucier, 533 U. S. 194, this Court mandated a two-step sequence for resolving government officials’ qualified immunity claims. First, a court must decide whether the facts that a plaintiff has alleged (see Fed. Rules Civ. Proc. 12(b)(6), (c)) or shown (see Rules 50, 56) make out a violation of a constitutional right. 533 U. S., at 201. Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was “clearly established” at the time of defendant’s alleged misconduct. Ibid. Qualified immunity is applicable unless the official’s conduct violated a clearly established constitutional right. Anderson, supra, at 640.
Our decisions prior to Saucier had held that “the better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all.” County of Sacramento v. Lewis, 523 U. S. 833, 841, n. 5 (1998). Saucier made that suggestion a mandate. For the first time, we held that whether “the facts alleged show the officer’s conduct violated a constitutional right... must be the initial inquiry” in every qualified immunity case. 533 U. S., at 201 (emphasis added). Only after completing this first step, we said, may a court turn to “the next, sequential step,” namely, “whether the right was clearly established.” Ibid.
This two-step procedure, the Saucier Court reasoned, is necessary to support the Constitution’s “elaboration from case to case” and to prevent constitutional stagnation. Ibid. “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.” Ibid.
B
In considering whether the Saucier procedure should be modified or abandoned, we must begin with the doctrine of stare decisis. Stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U. S. 808, 827 (1991). Although “[w]e approach the reconsideration of [our] decisions... with the utmost caution,” “[s]tare decisis is not an inexorable command.” State Oil Co. v. Khan, 522 U. S. 3, 20 (1997) (internal quotation marks omitted). Revisiting precedent is particularly appropriate where, as here, a departure would not upset expectations, the precedent consists of a judge-made rule that was recently adopted to improve the operation of the courts, and experience has pointed up the precedent’s shortcomings.
“Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved; the opposite is true in cases... involving procedural and evidentiary rules” that do not produce such reliance. Payne, supra, at 828 (citations omitted). Like rules governing procedures and the admission of evidence in the trial courts, Saucier’s two-step protocol does not affect the way in which parties order their affairs. Withdrawing from Saucier’s categorical rule would not upset settled expectations on anyone’s part. See United States v. Gaudin, 515 U. S. 506, 521 (1995).
Nor does this matter implicate “the general presumption that legislative changes should be left to Congress.” Khan, supra, at 20. We recognize that “considerations of stare decisis weigh heavily in the area of statutory construction, where Congress is free to change this Court’s interpretation of its legislation.” Illinois Brick Co. v. Illinois, 431 U. S. 720, 736 (1977). But the Saucier rule is judge made and implicates an important matter involving internal Judicial Branch operations. Any change should come from this Court, not Congress.
Respondent argues that the.Saucier procedure should not be reconsidered unless we conclude that its justification was “badly reasoned” or that the rule has proved to be “unworkable,” see Payne, supra, at 827, but those standards, which are appropriate when a constitutional or statutory precedent is challenged, are out of place in the present context. Because of the basis and the nature of the Saucier two-step protocol, it is sufficient that we now have a considerable body of new experience to consider regarding the consequences of requiring adherence to this inflexible procedure. This experience supports our present determination that a mandatory, two-step rule for resolving all qualified immunity claims should not be retained.
Lower court judges, who have had the task of applying the Saucier rule on a regular basis for the past eight years, have not been reticent in their criticism of Saucier’s “rigid order of battle.” See, e. g., Purtell v. Mason, 527 F. 3d 615, 622 (CA7 2008) (“This ‘rigid order of battle’ has been criticized on practical, procedural, and substantive grounds”); Leval, Judging Under the Constitution: Dicta About Dicta, 81 N. Y. U. L. Rev. 1249,1275,1277 (2006) (hereinafter Leval) (referring to Saucier’s mandatory two-step framework as “a new and mischievous rule” that amounts to “a puzzling misadventure in constitutional dictum”). And application of the rule has not always been enthusiastic. See Higazy v. Templeton, 505 F. 3d 161, 179, n. 19 (CA2 2007) (“We do not reach the issue of whether [plaintiff’s] Sixth Amendment rights were violated, because principles of judicial restraint caution us to avoid reaching constitutional questions when they are unnecessary to the disposition of a case”); Cherrington v. Skeeter, 344 F. 3d 631, 640 (CA6 2003) (“[I]t ultimately is unnecessary for us to decide whether the individual Defendants did or did not heed the Fourth Amendment command... because they are entitled to qualified immunity in any event”); Pearson v. Ramos, 237 F. 3d 881, 884 (CA7 2001) (“Whether [the Saucier] rule is absolute may be doubted”).
Members of this Court have also voiced criticism of the Saucier rule. See Morse v. Frederick, 551 U. S. 393, 432 (2007) (Breyer, J., concurring in judgment in part and dissenting in part) (“I would end the failed Saucier experiment now”); Bunting v. Mellen, 541 U. S. 1019 (2004) (Stevens, J., joined by Ginsburg and Breyer, JJ., respecting denial of certiorari) (criticizing the “unwise judge-made rule under which courts must decide whether the plaintiff has alleged a constitutional violation before addressing the question whether the defendant state actor is entitled to qualified immunity”); id., at 1025 (Scalia, J., joined by Rehnquist, C. J., dissenting from denial of certiorari) (“We should either make clear that constitutional determinations are not insulated from our review... or else drop any pretense at requiring the ordering in every case” (emphasis in original)); Brosseau v. Haugen, 543 U. S. 194, 201-202 (2004) (Breyer, J., joined by Scalia and Ginsburg, JJ., concurring) (urging Court to reconsider Saucier’s “rigid ‘order of battle,’” which “requires courts unnecessarily to decide difficult constitutional questions when there is available an easier basis for the decision (e. g., qualified immunity) that will satisfactorily resolve the case before the court”); Saucier, 533 U. S., at 210 (Ginsburg, J., concurring in judgment) (“The two-part test today’s decision imposes holds large potential to confuse”).
Where a decision has “been questioned by Members of the Court in later decisions and [has] defied consistent application by the lower courts,” these factors weigh in favor of reconsideration. Payne, 501 U. S., at 829-830; see also Crawford v. Washington, 541 U. S. 36, 60 (2004). Collectively, the factors we have noted make our present reevaluation of the Saucier two-step protocol appropriate.
III
On reconsidering the procedure required in Saucier, we conclude that, while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory. The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.
A
Although we now hold that the Saucier protocol should not be regarded as mandatory in all cases, we continue to recognize that it is often beneficial. For one thing, there aré cases in which there would be little if any conservation of judicial resources to be had by beginning and ending with a discussion of the “clearly established” prong. “[I]t often may be difficult to decide whether a right is clearly established without deciding precisely what the existing constitutional right happens to be.” Lyons v. Xenia, 417 F. 3d 565, 581 (CA6 2005) (Sutton, J., concurring). In some cases, a discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all. In addition, the Saucier Court was certainly correct in noting that the two-step procedure promotes the development of constitutional precedent and is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable.
B
At the same time, however, the rigid Saucier procedure comes with a price. The procedure sometimes results in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case. There are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right. District courts and courts of appeals with heavy caseloads are often understandably unenthusiastic about what may seem to be an essentially academic exercise.
Unnecessary litigation of constitutional issues also wastes the parties’ resources. Qualified immunity is “an immunity from suit rather than a mere defense to liability.” Mitchell, 472 U. S., at 526 (emphasis deleted). Saucier’s two-step protocol “disserve[s] the purpose of qualified immunity” when it “forces the parties to endure additional burdens of suit— such as the costs of litigating constitutional questions and delays attributable to resolving them — when the suit otherwise could be disposed of more readily.” Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 30.
Although the first prong of the Saucier procedure is intended to further the development of constitutional precedent, opinions following that procedure often fail to make a meaningful contribution to such development. For one thing, there are cases in which the constitutional question is so factbound that the decision provides little guidance for future cases. See Scott v. Harris, 550 U. S. 372, 388 (2007) (Breyer, J., concurring) (counseling against the Saucier two-step protocol where the question is “so fact dependent that the result will be confusion rather than clarity”); Buchanan v. Maine, 469 F. 3d 158, 168 (CA1 2006) (“We do not think the law elaboration purpose will be well served here, where the Fourth Amendment inquiry involves a reasonableness question which is highly idiosyncratic and heavily dependent on the facts”).
A decision on the underlying constitutional question in a § 1983 damages action or a Bivens v. Six Unknown Fed. Nar cotics Agents, 403 U. S. 388 (1971), action may have scant value when it appears that the question will soon be decided by a higher court. When presented with a constitutional question on which this Court had just granted certiorari, the Ninth Circuit elected to “bypass Saucier’s first step and decide only whether [the alleged right] was clearly established.” Motley v. Parks, 432 F. 3d 1072, 1078, and n. 5 (2005) (en banc). Similar considerations may come into play when a court of appeals panel confronts a constitutional question that is pending before the court en banc or when a district court encounters a constitutional question that is before the court of appeals.
A constitutional decision resting on an uncertain interpretation of state law is also of doubtful precedential importance. As a result, several courts have identified an “exception” to the Saucier rule for cases in which resolution of the constitutional question requires clarification of an ambiguous state statute. Egolf v. Witmer, 526 F. 3d 104, 109-111 (CA3 2008); accord, Tremblay v. McClellan, 350 F. 3d 195, 200 (CA1 2003); Ehrlich v. Glastonbury, 348 F. 3d 48, 57-60 (CA2 2003). Justifying the decision to grant qualified immunity to the defendant without first resolving, under Saucier’s first prong, whether the defendant’s conduct violated the Constitution, these courts have observed that Saucier’s “underlying principle” of encouraging federal courts to decide unclear legal questions in order to clarify the law for the future “is not meaningfully advanced... when the definition of constitutional rights depends on a federal court’s uncertain assumptions about state law.” Egolf supra, at 110; accord, Tremblay, supra, at 200; Ehrlich, supra, at 58.
When qualified immunity is asserted at the pleading stage, the precise factual basis for the plaintiff’s claim or claims may be hard to identify. See Lyons, 417 F. 3d, at 582 (Sutton, J., concurring); Kwai Fun Wong v. United States, 373 F. 3d 952, 957 (CA9 2004); Mollica v. Volker, 229 F. 3d 366, 374 (CA2 2000). Accordingly, several courts have recognized that the two-step inquiry “is an uncomfortable exercise where... the answer [to] whether there was a violation may depend on a kaleidoscope of facts not yet fully developed” and have suggested that “[i]t may be that Saucier was not strictly intended to cover” this situation. Dirrane v. Brookline Police Dept., 315 F. 3d 65, 69-70 (CA1 2002); see also Robinette v. Jones, 476 F. 3d 585, 592, n. 8 (CA8 2007) (declining to follow Saucier because “the parties have provided very few facts to define and limit any holding” on the constitutional question).
There are circumstances in which the first step of the Saucier procedure may create a risk of bad decisionmaking. The lower courts sometimes encounter cases in which the briefing of constitutional questions is woefully inadequate. See Lyons, supra, at 582 (Sutton, J., concurring) (noting the “risk that constitutional questions may be prematurely and incorrectly decided in.cases where they are not well presented”); Mollica, supra, at 374.
Although the Saucier rule prescribes the sequence in which the issues must be discussed by a court in its opinion, the rule does not — and obviously cannot — specify the sequence in which judges reach their conclusions in their own internal thought processes. Thus, there will be cases in which a court will rather quickly and easily decide that there was no violation of clearly established law before turning to the more difficult question whether the relevant facts make out a constitutional question at all. In such situations, there is a risk that a court may not devote as much care as it would in other circumstances to the decision of the constitutional issue. See Horne v. Coughlin, 191 F. 3d 244, 247 (CA2 1999) (“Judges risk being insufficiently thoughtful and cautious in uttering pronouncements that play no role in their adjudication”); Leval 1278-1279.
Rigid adherence to the Saucier rule may make it hard for affected parties to obtain appellate review of constitutional decisions that may have a serious prospective effect on their operations. Where a court holds that a defendant committed a constitutional violation but that the violation was not clearly established, the defendant may face a difficult situation. As the winning party, the defendant’s right to appeal the adverse holding on the constitutional question may be contested. See Bunting, 541 U. S., at 1025 (Scalia, J., dissenting from denial of certiorari) (“The perception of unreviewability undermines adherence to the sequencing rule we... created” in Saucier); see also Kalka v. Hawk, 215 F. 3d 90, 96, n. 9 (CADC 2000) (noting that “[n]ormally, a party may not appeal from a favorable judgment” and that the Supreme Court “has apparently never granted the certiorari petition of a party who prevailed in the appellate court”). In cases like Bunting, the “prevailing” defendant faces an unenviable choice: “compl[y] with the lower court’s advisory dictum without opportunity to seek appellate [or certiorari] review,” or “def[y] the views of the lower court, adher[e] to practices that have been declared illegal, and thus invit[e] new suits” and potential “punitive damages.” Horne, supra, at 247-248.
Adherence to Saucier’s two-step protocol departs from the general rule of constitutional avoidance and runs counter to the “older, wiser judicial counsel ‘not to pass on questions of constitutionality... unless such adjudication is unavoidable.’ ” Scott, 550 U. S., at 388 (Breyer, J., concurring) (quoting Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 105 (1944)); see Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of”).
In other analogous contexts, we have appropriately declined to mandate the order of decision that the lower courts must follow. For example, in Strickland v. Washington, 466 U. S. 668 (1984), we recognized a two-part test for determining whether a criminal defendant was denied the effective assistance of counsel: The defendant must demonstrate (1) that his counsel’s performance fell below what could be expected of a reasonably competent practitioner; and (2) that he was prejudiced by that substandard performance. Id., at 687. After setting forth and applying the analytical framework that courts must use in evaluating claims of ineffective assistance of counsel, we left it to the sound discretion of lower courts to determine the order of decision. Id., at 697 (“Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one”).
In United States v. Leon, 468 U. S. 897 (1984), we created an exception to the exclusionary rule when officers reasonably rely on a facially valid search warrant. Id., at 913. In that context, we recognized that a defendant challenging a search will lose if either: (1) the warrant issued was supported by probable cause; or (2) it was not, but the officers executing it reasonably believed that it was. Again, after setting forth and applying the analytical framework that courts must use in evaluating the good-faith exception to the Fourth Amendment warrant requirement, we left it to the sound discretion of the lower courts to determine the order of decision. Id., at 924, 925 (“There is no need for courts to adopt the inflexible practice of always deciding whether the officers’ conduct manifested objective good faith before turning to the question whether the Fourth Amendment has been violated”).
This flexibility properly reflects our respect for the lower federal courts that bear the brunt of adjudicating these cases. Because the two-step Saucier procedure is often, but not always, advantageous, the judges of the district courts and the courts of appeals are in the best position to determine the order of decisionmaking that will best facilitate the fair and efficient disposition of each case.
C
Any misgivings concerning our decision to withdraw from the mandate set forth in Saucier are unwarranted. Our decision does not prevent the lower courts from following the Saucier procedure; it simply recognizes that those courts should have the discretion to decide whether that procedure is worthwhile in particular cases. Moreover, the development of constitutional law is by no means entirely dependent on cases in which the defendant may seek qualified immunity. Most of the constitutional issues that are presented in § 1983 damages actions and Bivens cases also arise in cases in which that defense is not available, such as criminal cases and §1983 eases against a municipality, as well as §1983 cases against individuals where injunctive relief is sought instead of or in addition to damages. See Lewis, 523 U. S., at 841, n. 5 (noting that qualified immunity is unavailable “in a suit to enjoin future conduct, in an action against a municipality, or in litigating a suppression motion”).
We also do not think that relaxation of Saucier’s mandate is likely to result in a proliferation of damages claims against local governments. Cf. Brief for National Association of Counties et al. as Amici Curiae 29, 30 (“[T]o the extent that a rule permitting courts to bypass the merits makes it more difficult for civil rights plaintiffs to pursue novel claims, they will have greater reason to press custom, policy, or practice [damages] claims against local governments”). It is hard to see how the Saucier procedure could have a significant effect on a civil rights plaintiff's decision whether to seek damages only from a municipal employee or also from the municipality. Whether the Saucier procedure is mandatory or discretionary, the plaintiff will presumably take into account the possibility that the individual defendant will be held to have qualified immunity, and presumably the plaintiff will seek damages from the municipality as well as the individual employee if the benefits of doing so (any increase in the likelihood of recovery or collection of damages) outweigh the litigation costs.
Nor do we think that allowing the lower courts to exercise their discretion with respect to the Saucier procedure will spawn “a new cottage industry of litigation... over the standards for deciding whether to reach the merits in a given case.” Brief for National Association of Counties, supra, at 29, 30. It does not appear that such a “cottage industry” developed prior to Saucier, and we see no reason why our decision today should produce such a result.
IV
Turning to the conduct of the officers here, we hold that petitioners are entitled to qualified immunity because the entry did not violate clearly established law. An officer conducting a search is entitled to qualified immunity where clearly established law does not
Question: What state is associated with the petitioner?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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songer_numresp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Joseph Daniel BACA, Defendant-Appellant.
No. 81-1542.
United States Court of Appeals, Tenth Circuit.
Aug. 27, 1982.
Tova Indritz, Asst. Federal Public Defender, Albuquerque, N. M., for defendant-appellant.
Ben Silva, Asst. U. S. Atty., Albuquerque, N. M. (R. E. Thompson, U. S. Atty., and Stanley K. Kotovsky, Jr., Asst. U. S. Atty., Albuquerque, N. M., on the brief), for plaintiff-appellee.
Before BARRETT, DOYLE and LOGAN, Circuit Judges.
LOGAN, Circuit Judge.
Joseph Daniel Baca appeals his convictions for possession of heroin with intent to distribute it, and for distribution of heroin, both violations of 21 U.S.C. § 841(a).
A security guard at a vocational school saw Baca, a part-time student there, in the school parking lot crouched down beside his car with another man and a woman. The guard approached closely and watched Baca furtively pour gray powder from a small bottle into a plastic bag. When Baca saw the security guard, he yelled “run” and dropped the bottle. The guard seized the woman, the bottle, and a $10 bill she had in hand. Later, the Albuquerque police arrested Baca. A chemical analyst for the Albuquerque Police Department tested the powder in the bottle and concluded it was heroin. The State of New Mexico brought charges against Baca, but dropped them six months later. After another six months, pursuant to an order of the state court, the Albuquerque police destroyed the heroin. Soon thereafter, Baca was indicted, tried, and convicted of the federal offenses from which he has taken this appeal.
On appeal Baca contends (1) his due process and Brady rights were violated because he was convicted without the powdery substance being introduced into evidence, and because he was not able to independently test the substance to determine whether it was heroin; (2) he received ineffective assistance of counsel; (3) he was prejudiced by unreasonable delay occurring before he was indicted on federal charges; and (4) he was not mentally competent at the time of trial.
This Court previously has held that absent bad faith or fraudulent purpose on the part of the government, the destruction of evidence prior to trial does not necessitate reversal of a criminal conviction. Chandler v. United States, 318 F.2d 356 (10th Cir. 1963). When evidence has been lost or destroyed, courts engage in “a case-by-case assessment of the government’s culpability for the loss, together with a realistic appraisal of its significance when viewed in the light of its nature, its bearing upon critical issues in the case and strength of the government’s untainted proof.” United States v. Grammatikos, 633 F.2d 1013, 1019-20 (2d Cir. 1980); accord United States v. Picariello, 568 F.2d 222, 227 (1st Cir. 1978); United States v. Heiden, 508 F.2d 898, 902 (9th Cir. 1974). While the possibility of unprovable governmental wrongdoing is greater when, as here, the evidence was destroyed before rather than after the indictment of defendant on the federal charges, no court appears to have applied any different analysis in the two situations. See, e.g., United States v. Grammatikos, 633 F.2d at 1018-22; United States v. Traylor, 656 F.2d 1326, 1334-35 (9th Cir. 1981); United States v. Henry, 487 F.2d 912 (9th Cir. 1973).
In the instant case evidence was destroyed not by federal authorities but by state officers pursuant to an apparently routine order of the state district court. Baca attempts to show bad faith in that the federal charges were brought shortly after the state destroyed the powder — implying that the state found the substance was not heroin, and the federal authorities, aware of that fact, purposefully delayed prosecution until after the destruction. But nothing appears in the record to show collusion or even contact between state and federal authorities prior to the destruction of the powder. The state dropped its charges in part because of Baca’s heroin addiction and mental problems. Nothing appears in the record why the federal government delayed its prosecution, although it has a policy against duplicating state prosecutions arising out of the same factual circumstances. See Petite v. United States, 361 U.S. 529, 530-31, 80 S.Ct. 450, 451, 4 L.Ed.2d 490 (1960). Baca makes no showing of culpability on the part of the federal government for the loss of this evidence, and we decline to adopt a per se rule that destruction of important evidence by state officers prior to the issuance of a federal indictment precludes the federal government from prosecuting for violation of its laws.
Turning now to the significance of the loss of the evidence, the destroyed powder is important to this case because an essential element of the government’s burden of proof was to show that it was heroin. The ideal situation is to have the substance available for testing by the defendant. But the legal question is whether Baca was denied a fair trial because the powder was not available. See United States v. Wilks, 629 F.2d 669, 674 (10th Cir. 1980); accord United States v. Traylor, 656 F.2d 1326, 1334-35 (9th Cir. 1981) (destruction of cocaine by state authorities apparently prior to federal indictment). Baca alleges he was prejudiced because he was not able to determine whether the Albuquerque Police Department had correctly concluded that the powder was heroin. However, lack of independent verification alone is not enough to demonstrate prejudice. If it were, the government would never be permitted to prosecute when key evidence is inadvertently lost, destroyed, or stolen. In the instant case, other evidence exists to support the claim that the substance was heroin.
The Albuquerque police department expert who analyzed the powder testified regarding five standard tests he utilized to identify the substance as heroin. Baca challenges the analyst’s credentials and the accuracy of the testing process; but these issues go to credibility and were for the jury to consider. The analyst had five years experience, had taken 36 semester hours of college level chemistry, and had tested heroin approximately 50 times. We do not find either the analyst or the testing procedures so lacking in credibility as to create such substantial doubt about the identity of the substance that we should reverse the conviction as a matter of law. See State v. Chouinard, 96 N.M. 658, 634 P.2d 680, 684-85 (1981). Supporting the analyst’s expert opinion is an Albuquerque police detective’s testimony that he had a chemical technician field test the powder and “it proved to be heroin.” R.IV, 85. Also, Baca admittedly was addicted to heroin, and at the time of the seizure of the bottle at least one of his companions had needle marks consistent with recent heroin usage. Furthermore, the state’s charge against Baca for heroin possession was not dropped until about six months after Baca’s arrest. During that time his experienced legal counsel did not seek to independently examine the powder, which was still available for testing. Apparently defense counsel did not know the powder had been destroyed until the time of trial on the federal charges, and, prior to trial, he did not seek a test of the substance. We conclude that Baca has given no substantial reason to doubt that the powder was heroin. See United States v. Traylor, 656 F.2d at 1335; United States v. Arra, 630 F.2d 836, 849-50 (1st Cir. 1980).
Baca’s claim of ineffective assistance of counsel is tested by whether he received “the skill, judgment and diligence of a reasonably competent defense attorney.” See Dyer v. Crisp, 613 F.2d 275 (10th Cir.), cert. denied, 445 U.S. 945, 100 S.Ct. 1342, 63 L.Ed.2d 779 (1980). Baca contends his trial counsel fell short of the mark because he failed to seek a sample of the powdery substance for independent examination. But this could have been a strategic decision since the government’s case would have been strengthened if Baca’s experts had confirmed that the substance was heroin and that information had come to the attention of the jury. The other alleged shortcomings to which Baca points are either strategic decisions or the sort of minor errors that occur in nearly every trial. The record shows Baca’s counsel provided a vigorous defense. Any impropriety with regard to Baca’s appeal was cured when the appeal was allowed, albeit belatedly.
Baca’s third claim is that he was impermissibly prejudiced by unreasonable delay between his arrest and his indictment on federal charges. Although thirteen months elapsed between Baca’s arrest and the federal indictment, half of this time was consumed by the state’s aborted prosecution. Baca’s claim of prejudice by the delay is insubstantial, and Baca has made no showing that the government deliberately delayed prosecution to its advantage. See United States v. Marion, 404 U.S. 307, 324-25, 92 S.Ct. 455, 465-66, 30 L.Ed.2d 468 (1971); United States v. Revada, 574 F.2d 1047, 1048 (10th Cir. 1978).
Finally, Baca claims that at the time of trial he was mentally incompetent.
That issue was raised at trial, and the judge ordered Baca examined, first by a local psychiatrist and later for a thirty-day period by the staff of the Medical Center for Federal Prisoners. Based upon the medical testimony, the trial court found Baca to be competent, a conclusion we must accept unless it is clearly erroneous. See Arnold v. United States, 432 F.2d 871, 874 (10th Cir. 1970). Although the doctor who testified on behalf of the Medical Center had not personally examined Baca, he was qualified to present summaries of the other doctors’ evaluations. We have reviewed the medical reports and testimony and hold that the trial court’s conclusion as to competency was not clearly erroneous.
AFFIRMED.
. The allegation is not properly founded on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). There is no showing that the destroyed powder would have been exculpatory or that the government suppressed the evidence. See United States v. Augenblick, 393 U.S. 348, 355-56, 89 S.Ct. 528, 533, 21 L.Ed.2d 537 (1969); Killian v. United States, 368 U.S. 231, 242, 82 S.Ct. 302, 308, 7 L.Ed.2d 256 (1961); United States v. Arra, 630 F.2d 836, 848 (1st Cir. 1980). Under the test discussed below the courts concentrate on both the fault of the government and the prejudice to a defendant when evidence is lost or destroyed. Few of the cases focus on whether the power to sanction is founded on the court’s interest in protecting the judicial process from the illegal conduct of government officers, see Casey v. United States, 276 U.S. 413, 425, 48 S.Ct. 373, 376, 72 L.Ed. 632 (1928) (Brandéis, J., dissenting), or upon the defendant’s due process rights. We think that in ail but the most outrageous cases, if sanctions are imposed because of governmental misconduct they are based upon the supervisory power of the courts. Cf. United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1642-43, 36 L.Ed.2d 366 (1973) (“[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction .. . [but the government’s supplying a critical substance in methamphetamine production] is distinctly not of that breed.”) Insofar as sanctions are based upon prejudice to the defendant, we think the foundation is the Due Process Clause, since the test we apply is whether the defendant could or did receive a fair trial under the circumstances. See United States v. Wilks, 629 F.2d 669, 674 (10th Cir. 1980); United States v. Picariello, 568 F.2d 222, 227 (1st Cir. 1978).
. We do not imply counsel had a duty to seek a test during the state prosecution, especially since he succeeded in having the state charges dismissed.
. This failure is alleged by counsel representing Baca on appeal as evidence of incompetent representation at trial. Appellant’s Br. 25. Defense counsel objected to the police analyst’s testimony on the basis of insufficient foundation as to chain of custody (R.IV, 99, 108), and asked for dismissal at the close of trial because the government failed to produce the heroin (R.V, 241). But Baca’s principal defense, rejected by the jury, was insanity.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Clarence E. BENNETT, et al., Appellants, v. Kenneth BERG, et al., Appellees. Dan R. SANDFORD, Jr., et al., Appellants, v. Kenneth BERG, et al., Appellees.
No. 81-1418.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 10, 1981.
Decided Aug. 11, 1982.
Rehearing and Rehearing En Banc Denied in Part and Granted in Part Sept. 16,1982.
Robert Plotkin, Robert P. Schuwerk, Plotkin & Jacobs, Ltd., Chicago, 111., Jim Tom Reid, Shockley, Reid & Roger, Kansas City, Mo., for appellants.
James M. Beck, Steven M. Leigh, Johnson, Lucas, Bush, Snapp & Burgess, Kansas City, Mo., for John Knox Village.
Baker & Botts, James G. Ulmer, Randall A. Hopkins, Donna C. Kline, Robert E. Goodman, Jr., Houston, Tex., Swanson, Midgley, Gangwere, Clarke & Kitchin, James H. McLarney, Kansas City, Mo., for the Prudential Ins. Com. of America, appellee.
John H. Altergott, Jr., Suzanne K. Loseke, Shughart, Thomson & Kilroy, P. C., Kansas City, Mo., for appellee G. Dennis Sullivan.
James Borthwick, Shirley W. Keeler, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., for Snyder, Grant & Muehling.
Albert Thomson, Linde, Thomson, Fair-child, Langworthy, Kohn & Van Dyke, Kansas City, Mo., for appellees Kenneth Berg, Jeanne Berg, Christian Services Intern., Inc., Evangelical Christian Social Services, Inc., Lee Felsburg, Nat. Village Church Center, Lottie Jones, Irma Waddell, Elson Herndon, Floyd Sauer, Chris Coates, Glenn Smead, Maude Walker, Paul Edwards, Harvey Arbonies, and Mike Swingle.
Before HENLEY and ARNOLD, Cir-' cuit Judges, and NICHOL, Senior District Judge.
As indicated, was vember 10, 1981. However, it was held in abeyance pending decision in United States v. Bledsoe, 674 F.2d 647 (8th Cir. 1982), and United States v. Lemm, 680 F.2d 1193 (8th Cir. 1982).
Judge Henley assumed senior status on June 1, 1982.
The Honorable Fred J. Nichol, Senior District Judge, District of South Dakota, sitting by designation.
HENLEY, Senior Circuit Judge.
This appeal arises upon the district court’s granting of defendants’ motion to dismiss for failure to state a claim. Fed.R. Civ.P. 12(b)(6). The case involves two consolidated complaints in which plaintiffs-appellants seek, inter alia, treble damages and equitable relief under the civil remedies provisions of the title popularly known as RICO. Title IX of the Organized Crime Control Act of 1970, “Racketeer Influenced and Corrupt Organizations,” Pub.L.No.91-452, §§ 901-904, 84 Stat. 922, 941-48, codified at 18 U.S.C. §§ 1961-68 (1976). Appellants’ basic allegation is that their retirement community, known as John Knox Village, has been subject to financial mismanagement and self-dealing such that they are in danger of losing the “life care” which they were promised.
The district court held that appellants’ complaint was subject to dismissal because it failed to allege the existence of an identifiable “enterprise” within the meaning of RICO, and because the equitable relief sought by appellants is not available to a private plaintiff. Federal jurisdiction was predicated entirely upon the RICO Act. Dismissal of the RICO counts therefore resulted in dismissal of pendent state claims.
We reverse in part and affirm in part the district court’s dismissal.
I. BACKGROUND.
Plaintiffs-appellants are present and former residents of the John Knox Village retirement community in Lee’s Summit, Missouri. The facility is owned and operated by a not-for-profit corporation of the same name organized under the general corporation law of Missouri. The Village is exempt from federal taxation pursuant to 26 U.S.C. § 501(c)(4), and is exempt from Missouri state and local taxation by virtue of its not-for-profit status.
The residential community consists of approximately 2,500 residents who occupy units in the facility pursuant to Occupancy Agreement contracts. Under the terms of the occupancy agreements, pay.ment of an initial lump sum, or “Entrance Endowment,” entitles a resident to occupy a specific apartment for life. Appellants allege that the endowment fee paid by various plaintiffs ranged in amount from $9,000.00 to more than $50,000.00.
In addition to the entrance endowment, the occupancy agreements call for the payment of a “monthly lodging and/or service charge... in such amounts as determined by the Board of Directors of the Village.” The agreements state that “the Village proposes to provide” some fifty-one services and facilities out of the monthly charges, including tray and diet service, building and grounds maintenance, scheduled transportation service, laundry service and various medical services.
Appellants allege that the Village is on the verge of bankruptcy, that services have markedly deteriorated, and that they face the loss of the “life care” which they expected and would have received but for fraud both in the inducement of residents to live in the community and in the operation of the Village. Their complaints in eleven counts stated causes of action for common law fraud under state law; violation of Missouri’s Merchandising Practices Act, Mo.Rev.Stat. §§ 407.010 et seq. (1978); breach of fiduciary duty; and RICO violations. Only the RICO counts are directly at issue in this appeal.
The complaints include two RICO counts. In Count I, all defendants except John Knox Village are charged with participation in a pattern of racketeering through numerous acts of mail fraud, and conspiracy to engage in such a course of conduct, in violation of RICO provisions codified at 18 U.S.C. §§ 1961(5), 1962(a), (b), (c), and (d). Count II incorporates the factual allegations of Count I against John Knox Village with a prayer for equitable relief in the form of reorganization of the Village.
The essence of the scheme alleged is that various defendants fraudulently promoted the retirement community with materially false statements as to the Village’s financial soundness and the promise of affordable “life care.” Defendants are further alleged to have breached their fiduciary duty in operating the Village through a pattern of self-dealing. Finally, various defendants, including the Village’s mortgage lender and former accountants, are charged with conspiracy to conceal the fraudulent promotion and operation of the Village.
The named defendants are the not-for-profit corporation John Knox Village; the founder of the Village, Kenneth Berg (hereinafter “Berg”); various not-for-profit corporations allegedly controlled by Berg; the mortgage lender to the Village, Prudential Life Insurance Company of America (hereinafter “Prudential”); the Village’s former accountants, Snyder, Grant & Muehling (hereinafter “SG&M”); two former attorneys employed by various defendants; and various officers and directors of the Village and other not-for-profit organizations named in the complaint.
On March 11, 1981 the district court entered an order granting various defendants’ motions to dismiss, followed by an unpublished memorandum opinion, order and judgment dismissing the complaints in both actions. The court held that the complaints failed to allege an “enterprise” within the meaning of RICO, and that the relief sought in Count II, a reorganization of defendant John Knox Village pursuant to 18 U.S.C. § 1964(a), was not available to private plaintiffs under the RICO Act.
On appeal, appellees renew their contention that (1) appellants failed to allege such “injury to [their] business or property” as is cognizable under RICO, 18 U.S.C. § 1964(c); (2) appellants failed to allege a RICO “enterprise” separate from the “pattern of racketeering”; (3) appellants failed to allege a RICO “enterprise” separate from the “person” or persons who may be culpable under RICO; (4) appellants failed to allege a “pattern of racketeering activity”; (5) appellants failed to allege that defendants “invested” racketeering proceeds in an enterprise, “acquired an interest in” an enterprise through racketeering activity, or “associated with” an enterprise to conduct the enterprise’s affairs through a pattern of racketeering; (6) appellants failed to allege that organized crime was involved in their injury; and (7) the equitable relief requested is not available to private plaintiffs.
This litany of grounds for affirmance includes a number of issues of first impression in the Circuit Courts of Appeals. In reversing, we stress that today’s decision is rendered on the pleadings without the benefit of a full factual record. Moreover, we are bound by a stringent standard in reviewing a Rule 12(b)(6) dismissal. “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45—46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957) (footnote omitted). A complaint must be viewed in the light most favorable to the plaintiff and should not be dismissed merely because the court doubts that a plaintiff will be able to prove all of the necessary factual allegations. “Thus, as a practical matter, a dismissal under Rule 12(b)(6) is likely to be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief [citations omitted].” Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir. 1982), quoting Jackson Sawmill Co. v. United States, 580 F.2d 302, 306 (8th Cir. 1978), cert. denied, 439 U.S. 1070, 99 S.Ct. 839, 59 L.Ed.2d 35 (1979).
Pleadings should be construed to do substantial justice. Fed.R.Civ.P. 8(f). Specificity sufficient to supply fair notice of the nature of the action will withstand a motion under Rule 12(b)(6). Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974); 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1216 at 120-121 (1969).
We are uncertain whether the facts developed at trial will sustain a cause of action under RICO. We are compelled under these standards, however, to reverse in part the district court’s dismissal.
II. DISCUSSION.
A. Standing.
Appellees JKV, Prudential, and SG&M argue as a preliminary matter that appellants failed to allege the kind of injury which supports standing to bring a civil RICO suit. RICO provides that a civil action for treble damages may be brought by “[a]ny person injured in his business or property by reason of a violation of section 1962.” 18 U.S.C. § 1964(c).
Appellants’ complaints alleged several forms of monetary loss. Appellants’ entrance endowment payments are alleged to be worth 10% of what appellants bargained for, due to appellees’ alleged conversion to their own use of funds which were deposited in trust for “life care.” Monthly service charges are also alleged to be higher than expected due to appellees’ unlawful conduct.
Appellees respond that the complaints do not allege a RICO injury for two reasons. First, the complaints are said to assert no breach of contract. Thus they allegedly do not state any injury whatsoever. Alternatively, any injury stated in the complaints allegedly is not an “injury to property” recognizable under the RICO Act. RICO is said to require competitive injury.
We are not convinced. Even if breach of contract is not directly and clearly stated in the complaints, this is irrelevant. Appellants’ basic contention is that the value of their occupancy agreements was misrepresented ab initio, and that appellees’ conduct has further lessened the value of their contracts. The essence of this alleged injury is not so much that contractual terms have been breached, but that the value of the contracts is different than appellants were led to expect through ex-tracontractual statements and promises. The allegation sounds as one of injury flowing from fraud rather than breach of contract. Appellants claim essentially to have been deprived of the benefit of their bargain.
Appellees’ second argument is somewhat more troublesome. They contend that even if appellants have alleged an injury, they have not alleged an “injury to property” within the meaning of Section 1964(c). Section 1964(c) provides a private cause of action modelled on the antitrust laws. S.Rep.No.617, 91st Cong., 1st Sess., 80-82, 125, 160 (1969) (hereinafter cited as S.Rep. No.617); 115 Cong.Rec. 6993 (1969) (statement of Sen. Hruska); id. at 39,907 (statement of Sen. McClellan); 116 id. at 585 (1970) (synopsis of S. 30, 91st Cong., 1st Sess. (1969)); id. at 35,916 (statement of Rep. Celler); id. at 35,201 (statement of Rep. McCulloch); id. at 36,296 (statement of Sen. Dole). Appellees argue from this fact that the “injury to property” alleged under Section 1964(c) must be an injury to competitive or commercial interests.
This argument has found favor with some courts. Van Schaick v. Church of Scientology, 535 F.Supp. 1125 (D.Mass.1982) (requiring commercial harm though not competitive injury); North Barrington Development, Inc. v. Fanslow, - F.2d -, No. 80-C-2644 (N.D.Ill. Oct. 9, 1980) (requiring competitive injury).
We acknowledge that RICO was intended in part to combat the threat posed by racketeer influences in the free market system. H.R.Rep.No.1549, 91st Cong., 2d Sess. 57, reprinted in [1970] U.S.Code Cong. & Ad. News 4007, 4033 (hereinafter cited as H.R. Rep.No.1549); S.Rep.No.617; United States v. Turkette, 452 U.S. 576, 591 & nn. 13, 14, 101 S.Ct. 2524, 2532 & nn. 13, 14, 69 L.Ed.2d 246 (1981) (and citations to legislative history therein). This does not mean, however, that RICO should be viewed as an extension of antitrust law in all respects. Different policies underlie the two bodies of law. To ruin an antitrust defendant, usually a legitimate businessman, would generally lessen competition and increase concentration in a particular industry. RICO, on the other hand, is concerned to “strik[e]... a mortal blow against the property interests of organized crime.” 116 Cong.Rec. 602 (1970) (statement of Sen. Hruska). In a RICO context, there are few countervailing reasons to lessen the impact of RICO remedies by importing the limitations on standing which apply in antitrust law. In other words, although RICO borrowed the tools of antitrust law to combat organized criminal activity, we do not believe the RICO Act was limited to the antitrust goal of preventing interference with free trade. Congress did not see the objectives of RICO and the antitrust laws as coterminous. See S.Rep. No.617 at 81-82; 115 Cong.Rec. 6993 (statement of Sen. Hruska); id. at 9567 (statement of Sen. McClellan); 116 id. at 607 (1970) (statement of Sen. Byrd); id. at 35,-193 (statement of Rep. Poff).
We conclude that an allegation of commercial or competitive injury is not required by the RICO Act. Prudential Lines, Inc. v. McKeon, No. 80 Civ. 5853 (S.D.N.Y. April 21, 1982); Landmark Savings & Loan v. Rhoades, 527 F.Supp. 206, 208 (E.D.Mich. 1981); Hellenic Lines, Ltd. v. O’Hearn, 523 F.Supp. 244, 248 (S.D.N.Y.1981) (RICO does not countenance racketeering activity merely because it is done uniformly among competing concerns); see also Note, Civil RICO: The Temptation and Impropriety of Judicial Restrictions, 95 Harv.L.Rev. 1101, 1109— 1114 (1982) (hereinafter cited as Note, Civil RICO); Blakey & Gettings, Racketeer Influenced and Corrupt Organizations (RICO): Basic Concepts-Criminal and Civil Remedies, 53 Temple L.Q. 1009, 1040-1043 (1980) (hereinafter cited as Blakey & Gettings, Basic Concepts); Seiling, Standing Rules and the RICO Treble Damage Action, 1 Materials on RICO 533-73 (R. Blakey ed. 1980); but see Comment, Reading the “Enterprise” Element Back into RICO: Sections 1962 and 1964(c),” 76 Northwestern L.Rev. 100, 125-26 (1981) (private damage suit under RICO may be brought only where there is competitive injury resulting from an “enterprise’s” distinct involvement in the racketeering activity) (hereinafter cited as Comment, Reading the “Enterprise” Element Back into RICO ).
B. “Enterprise” Distinct From the “Pattern of Racketeering.”
Turning to the substantive elements of a RICO claim, appellees next contend that the complaints fail to allege the existence of an enterprise distinct from the alleged pattern of racketeering. This contention, and several others that follow, requires attention to the complex syntax of the RICO statute, which appellants have been all too inclined to ignore.
The RICO Act makes it unlawful for any person to conduct the affairs of an “enterprise” through a pattern of racketeering activity. 18 U.S.C. § 1962(c). Significantly, the statute forbids the predicate acts of racketeering only insofar as an “enterprise” is involved. By requiring proof of an “enterprise,” RICO requires proof of a fact other than the facts required to prove the predicate acts of racketeering. United States v. Anderson, 626 F.2d 1358, 1367 (8th Cir. 1980), cert. denied, 450 U.S. 912, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981). RICO is not a recidivist statute with enhanced penalties for acts of racketeering that are elsewhere proscribed in the criminal code. Id. at 1368 n.17. “The... enterprise at all times remains a separate element which must be proved[.]” United States v. Turkette, 452 U.S. at 583, 101 S.Ct. at 2528; United States v. Anderson, 626 F.2d 1538.
In the present case, the district court assumed that the enterprise alleged in the complaint, if any, is the corporate entity John Knox Village. The court noted that the complaint portrayed the Village as “pervasively fraudulent.” In light of this fact, the court concluded that the Village was not alleged to have an existence apart from the acts of racketeering.
We disagree, although our finding of a RICO enterprise is circumscribed as to Count II for the reasons discussed in Section C.
The complaint alleges and appellees themselves stress that John Knox Village provides numerous legitimate services. As an entity providing such services, and as an incorporated body under the laws of the State of Missouri, the John Knox Village corporation has an ascertainable structure apart from any predicate acts of mail fraud. As we held in Anderson and as the Supreme Court noted in Turkette, an enterprise may be said to exist where such separateness from the acts of racketeering can be found. Discrete existence, rather than the legality or illegality of the enterprise’s activities or goals, is the test. United States v. Turkette, 452 U.S. at 585, 101 S.Ct. at 2530; United States v. Anderson, 626 F.2d at 1372 (“[W]e do not rest our holding on the word ‘legitimate’ but rather on the need for a discrete economic association existing separately from the racketeering activity.”).
An enterprise is particularly likely to be found where, as here, the enterprise alleged is a legal entity rather than an “associational enterprise.” Legal entities are garden-variety “enterprises” which generally pose no problem of separateness from the predicate acts. E.g., United States v. Swiderski, 593 F.2d 1246 (D.C.Cir.1978), cert. denied sub nom. McGowan v. United States and Swiderski v. United States, 441 U.S. 933, 99 S.Ct. 2056, 60 L.Ed.2d 662 (1979) (legitimate restaurant serving as front for narcotics trafficking); United States v. Brown, 583 F.2d 659 (3d Cir. 1978), cert. denied sub nom. Greenblatt v. United States, 440 U.S. 909, 99 S.Ct. 1217, 59 L.Ed.2d 456 (1979) (auto dealership); United States v. Weatherspoon, 581 F.2d 595 (7th Cir. 1978) (beauty college); United States v. Forsythe, 560 F.2d 1127 (3d Cir. 1977) (bail bond agency); United States v. Parness, 503 F.2d 430 (2d Cir. 1974), cert. denied, 419 U.S. 1105, 95 S.Ct. 775, 42 L.Ed.2d 801 (1975) (foreign hotel and gambling casino).
We conclude that John Knox Village appropriately is named as an enterprise in the complaints for purposes of stating a RICO claim. We do not presently decide whether the various not-for-profit corporations named in the complaint are also “enterprises” within RICO. We further do not decide whether Kenneth Berg, founder of the Village, or other individual defendants may be enterprises. See 18 U.S.C. § 1961(4) (enterprise includes “any individual”); United States v. Elliott, 571 F.2d 880, 898 n.18 (5th Cir.), cert. denied sub nom. Delph v. United States, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 and Hawkins v. United States, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed. 344 (1978); United States v. Hawkins, 516 F.Supp. 1204, 1206 (M.D.Ga.1981) (single individual may be an enterprise).
C. “Enterprise” Distinct From the Culpable “Person.”
The RICO Act proscribes conduct in which one party, the “person” subject to the statute, acts upon an entity, the “enterprise,” in such a manner that the enterprise’s affairs are conducted through a pattern of racketeering. Appellee Prudential separately argues that an “enterprise” was not alleged apart from the “person” who “associated with” an enterprise for purposes of racketeering. We agree as to Count II of the complaints.
Count II is marked by a realignment of the defendant parties. In Count I, appellants seek treble damage relief from all defendants except for John Knox Village, leaving the Village in the role of the “enterprise” affected by the other defendants’ allegedly illegal acts. In Count II, equitable relief is sought from JKV. Accordingly, this count places the Village in the role of the “person” responsible for conducting the affairs of an enterprise through a pattern of racketeering activity. In this formulation, appellants may intend to place the residential community in the role of the RICO “enterprise.” The residential community, so perceived, would arguably be an “association in fact” for purposes of RICO. 18 U.S.C. § 1961(4). This allegation, however, has not been clearly set forth. For this reason, we conclude that the RICO claim as stated in Count II against John Knox Village cannot stand. Van Schaick v. Church of Scientology, 535 F.Supp. 1125 (D.Mass.1982). Compare United States v. Hartley, 678 F.2d 961 (11th Cir. 1982), reaching a somewhat different result in unique context in a criminal case.
We suggest that on remand appellants should be permitted to amend their complaint, if indeed they fairly may, so as to include some of what is now in Count II, but containing at least an appropriate “enterprise” allegation. Rule 15(a) declares that leave to amend “shall be freely given when justice so requires,” and this mandate is to be heeded. See generally 3 J. Moore, Moore’s Federal Practice, UK 15.08, 15.10 (1982); Asay v. Hallmark Cards, Inc., 594 F.2d 692, 695-96 (8th Cir. 1979). The pleading rules have been interpreted in accord with the principle that the purpose of pleading is to facilitate a proper decision on the merits. Id. at 695.
D. Pattern of Racketeering.
Appellees next contend that the complaints fail to allege a “pattern of racketeering.” Although “multiple incidents” of mail and wire fraud are alleged, and although racketeering activity includes mail and wire fraud, 18 U.S.C. § 1961(1), the complaints are said to lack the specificity required for pleadings of fraud under Fed. R.Civ.P. 9(b). We find some merit in this argument.
Rule 9(b) requires that “the circumstances constituting fraud... be stated with particularity.” “Circumstances” include such matters as the time, place and contents of false representations, as well as the identity of the person making the misrepresentation and what was obtained or given up thereby. See generally 2A J. Moore & J. Lucas, Moore’s Federal Practice, 19.03 at 9-18 — 9-24 (1982).
The complaints state the time, place and content of only some of the defendants’ alleged misrepresentations. The location of other allegedly false statements is said to be a “pamphlet,” “promotional material,” or “a typical life-care contract.” These allegations are not sufficiently particular to satisfy Rule 9(b). The complaints also fail to attribute certain false statements to identified defendants. Instead “various other defendants” are alleged to be responsible for the statements. These allegations utterly fail to apprise defendants of the claims against them and the acts relied upon as constituting the fraud charged. See 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1297 at 404 (1969); Felton v. Walston & Co., 508 F.2d 577, 581 (2d Cir. 1974).
We hold that on remand allegations which fail in particularity, see nn. 14, 15, should be struck without prejudice. Insofar as some paragraphs contain allegations against both identified and unidentified defendants, these paragraphs may stand as to named defendants if, as to the named defendants, the paragraphs are otherwise specific in stating the time, place and content of the misrepresentations.
Appellees JKV and Prudential also argue that a pattern of racketeering has not been alleged because no allegations of wire or mail fraud are made. This argument ignores numerous allegations of particular false statements. See n.13, supra. Use of the mails and wire fraud is also alleged.
In sum, we conclude that a pattern of racketeering was alleged, and that fraud was alleged with sufficient particularity except for the allegations identified in nn.1415.
E. Involvement of Organized Crime.
Appellee SG&M finally contends that a RICO complaint will lie only where the involvement of organized crime is alleged. This argument has found some degree of support, Waterman Steamship Corp. v. Avondale Shipyards, Inc., 527 F.Supp. 256, 260 (E.D.La.1981); Adair v. Hunt International Resources Corp., 526 F.Supp. 736, 746-48 (N.D.Ill.1981); Barr v. WUI/TAS, Inc., 66 F.R.D. 109, 113 (S.D.N.Y.1975), from courts which may have been swayed by Congress’s evident concern with organized crime in the passage of RICO. See United States v. Turkette, 452 U.S. at 588-93 & nn. 11, 12, 13, 14, 101 S.Ct. at 2531-33 & nn. 11, 12, 13, 14 (and legislative history cited therein); H.R.Rep.No.1549, reprinted in [1970] U.S.Code Cong. & Ad.News 4007; S.Rep.No.617; see also Comment, Organized Crime and the Infiltration of Legitimate Business: Civil Remedies for “Criminal Activity,” 124 U.Pa.L.Rev. 192, 205 (1975).
We are convinced that the better reasoned approach is one which rejects any attempt to interpret RICO as creating a status offense aimed only at organized crime in any colloquial sense of that phrase. The legislative history of the Act suggests that RICO is aimed more broadly at organized criminal activity as well. 116 Cong. Rec. 35, 344 (1970) (statement of Rep. Poff) (Organized crime “serve[s] simply as a shorthand method of referring to a large and varying group of individual criminal offenses committed in diverse circumstances. ). In fact, a restriction of the statute’s applicability to organized crime, defined as a specific group of individuals, appeared constitutionally suspect to the bill’s sponsor. Id. at 35,204 (statement of Rep. Poff). When Representative Biaggi proposed an amendment that would have specifically criminalized membership in the Mafia or La Cosa Nostra, Representative Celler objected that such terms were “imprecise, uncertain and unclear” and that mere membership in an organization should not be punished. Id. at 35,343-44 (statement of Rep. Celler, citing Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961); Lanzetta v. New Jersey, 306 U.S. 451 (1939)).
We join an increasing number of courts and commentators in concluding that RICO suits are not limited to contexts in which a tie to organized crime is alleged. United States v. Aleman, 609 F.2d 298,303-04 (7th Cir. 1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980); United States v. Campanale, 518 F.2d 352, 363-64 (9th Cir. 1975), cert. denied sub nom. Matthews v. United States, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976); Hellenic Lines, Ltd. v. O’Hearn, 523 F.Supp. at 247-48; Engl v. Berg, 511 F.Supp. 1146, 1155 (E.D.Pa.1981); Parnes v. Heinhold Commodities, 487 F.Supp. 645, 646 (N.D.Ill. 1980); United States v. Gibson, 486 F.Supp. 1230, 1240-41 (S.D.Ohio 1980); United States v. Chovanec, 467 F.Supp. 41, 44-45 (S.D.N.Y.1979); United States v. Vignola, 464 F.Supp. 1091, 1096 (E.D.Pa.), aff’d, 605 F.2d 1199 (3d Cir. 1979), cert. denied, 444 U.S. 1072, 100 S.Ct. 1015, 62 L.Ed.2d 753 (1980); United States v. Mandel, 415 F.Supp. 997, 1018-19 (D.Md.1976); Note, Civil RICO, supra, 95 Harv.L.Rev. at 1106-1109; Comment, Reading the “Enterprise” Element Back into RICO, supra, 76 N.W.L. Rev. at 100-01 & n.4; Long, Treble Damages for Violations of the Federal Securities Laws: A Suggested Analysis and Application of the RICO Civil Cause of Action, 85 Dick.L.Rev. 201, 242-43 (1981); Blakey & Gettings, supra, Basic Concepts, 53 Temple L.Q. at 1013 n.15; Comment, Title IX of the Organized Crime Control Act of 1970: An Analysis of Issues Arising in its Interpretation, 27 DePaul L.Rev. 89, 112 (1975).
We recognize that this conclusion may tend to extend the net of the RICO Act to situations which otherwise might find a remedy only in the state courts. In the present context, for example, appellants are able to avail themselves of a federal cause of action for treble damages under RICO where common law fraud is an alternative claim. However, at least some federalization of state claims was not unanticipated by Congress. As the Supreme Court noted in the context of a criminal prosecution:
As the hearings and legislative debates reveal, Congress was well aware of the fear that RICO would “mov[e] large substantive areas formerly totally within the police power of the State into the Federal realm.” 116 Cong.Rec. 35217 (remarks of Rep. Eckhardt). See also id., at 35205 (remarks of Rep. Mikva); id., at 35213 (comments of the American Civil Liberties Union); Hearings on Organized Crime Control before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 2d Sess., 329, 370 (statement of Sheldon H. Eisen on behalf of the Association of the Bar of the City of New York). In the face of these objections, Congress nonetheless proceeded to enact the measure, knowing that it would alter somewhat the role of the Federal Government in the war against organized crime and that the alteration would entail prosecutions involving acts of racketeering that are also crimes under state law.
United States v. Turkette, 452 U.S. at 586-87, 101 S.Ct. at 2530-31 (emphasis added).
Insofar as the door of the federal courthouse is similarly opened by RICO in a civil context, we are cautioned by the Supreme Court that broad Congressional action should not be restricted by the courts in the name of federalism. Id. at 587, 101 S.Ct. at 2531. It is beyond our authority to restrict the reach of the statute. Id.; see also Note, Civil RICO, supra, 95 Harv.L. Rev. at 1118-21.
Moreover, in the specific context of this case, it cannot be said that we have opened the floodgates for federal adjudication of every common law fraud claim. RICO is directed only at situations involving an enterprise which engages in
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
TRANSWESTERN PIPELINE COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Public Utilities Commission of the State of California, Williams Natural Gas Company, Southern California Gas Company, Western Resources, Inc., Intervenors.
No. 91-1307.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 2, 1993.
Decided March 19, 1993.
William J. Grealis, Washington, DC, for petitioner.
Joel M. Cockrell, Atty., F.E.R.C. with whom William S. Scherman, Gen. Counsel, and Jerome M. Feit, Washington, DC, Sol., F.E.R.C., were on the brief, for respondent.
Martin J. Bregman, Topeka, KS, for in-tervenor Western Resources, Inc.
Arocles Aguilar and Edward O’Neill, San Francisco, CA, entered appearances for in-tervenor Public Utilities Com’n of the State of Cal.
Douglas O. Waikart and Gregory Grady, Washington, DC, entered appearances for intervenor Williams Natural Gas Co.
Michael A. Cartelli and Woodrow D. Smith, Los Angeles, CA, entered appearances for intervenor Southern California Gas Co.
Before: WALD, RUTH BADER GINSBURG, and SILBERMAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
SILBERMAN, Circuit Judge:
Transwestern Pipeline Company petitions for review of a FERC order permitting Williams Natural Gas Company to unconditionally abandon its certified obligation to purchase gas from Transwestern. Petitioner asserts that FERC should hold Williams responsible for “its share” of Transwestern’s take-or-pay costs incurred after Williams terminated its contractual relationship with Transwestern. We deny the petition.
I.
Section 7(c) of the Natural Gas Act requires natural gas companies to receive a certificate from FERC before they may sell or transport gas. 15 U.S.C. § 717f(c). A certificate creates two obligations, one on the part of the seller, and one on the part of the buyer. The seller must maintain the ability to supply the buyer with the amount of gas specified both in the certificate and in the seller’s contract with the buyer. As a corollary, the buyer is obliged to buy the gas from the seller.
The Natural Gas Act also requires that FERC review any attempt or agreement to terminate service under a certificate. “No natural gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission.” Id. at § 717f(b). In 1988, in accordance with its general deregulatory policies, FERC promulgated rules that inter alia allowed automatic abandonment of service by purchasers either when their underlying contract had expired, or when they had terminated their purchases pursuant to contract or agreement. Order No. 490, 53 Fed.Reg. 4121 (Feb. 12, 1988) (codified at 18 C.F.R. § 157.21). The pertinent part of Order No. 490 states that:
(a) ... a purchaser ... is authorized, upon 30-days written notice to (or from) the seller, or any longer notice period required by contract, to abandon purchases of natural gas from any first seller or pipeline: (1) Permanently, under a contract that has expired, or (2) To the extent that the obligation of the purchaser to take or pay for gas (or both), or of the seller to deliver gas, is unilaterally reduced, suspended or terminated by either party in accordance with a provision of an unexpired contract. Id.
The order also requires that the abandoning purchaser notify FERC within 30 days of the abandonment. In a change from previous policy, the new order does not require that FERC specifically authorize the abandonment, but instead permits abandonment automatically once a purchaser has satisfied the order’s terms.
In the case before us, Transwestern and Williams entered into an agreement in 1986 to settle various rate and purchase obligation issues. The settlement also gave Williams the option of terminating its sales service agreement with Transwestern on February 1, 1989, 1990, or 1991, after one year’s notice. Although the settlement did not refer to Transwestern’s take-or-pay costs (under its contracts with producers) or Williams’ liability for those costs, Article XVII of the contract did provide that:
[t]he provisions of this settlement are intended to relate only to specific matters referred to herein, and by agreeing to this settlement, no party waives any claim or right which it may otherwise have with respect to any matters not expressly provided for herein.
In accordance with the settlement, on February 1, 1988 Williams gave Transwest-ern one year’s notice of its intent to abandon service. Only 11 days later, FERC issued Order No. 490 to take effect on April 12, 1988. On January 5, 1989, Transwestern filed both its application to abandon sales service to Williams, and— pursuant to Williams’ request — an application on Williams’ behalf to abandon Williams’ purchase obligation. Transwest-ern also requested that FERC condition Williams’ abandonment to allow Transwest-ern to continue to recover a share of its take-or-pay costs.
In October 1989, FERC rejected Trans-western’s request to condition Williams’ abandonment. The agency held that Williams had “already obtained unconditional authorization to abandon its purchases from Transwestern pursuant to [Order No. 490], and that the authorization is final.” Transwestern Pipeline Co., 49 F.E.R.C. ¶ 61,021 (1989). FERC decided that it lacked the authority to impose any conditions on Williams because as of February 1, 1989 Williams had abandoned unilaterally in accordance with both the 1986 settlement and Order No. 490. FERC then held that Williams’ “compliance” with Order No. 490 made Williams’ formal application for abandonment — filed on its behalf by Transwestern — moot because Trans-western had filed its petition less than one month before the February 1, 1989 abandonment date. In short, Trans western’s delay foreseeably led to FERC’s not considering the ease before Williams had effected its abandonment. With Trans western’s application for abandonment of its service obligation the only matter still before the Commission, FERC held that “Transwest-ern’s abandonment authorization only applies to Transwestern, and any conditions on that authorization would only bind Transwestern — not Williams who has not been a customer since February 1, 1989.” Id.
Based on these findings, FERC decided that Williams was only liable for take-or-pay costs filed when still a Transwestern customer — up to February 1, 1989. FERC denied Transwestern’s petition for rehearing on April 30, 1991. This appeal followed.
II.
Transwestern’s underlying claim is that Williams should be held responsible for its share of the take-or-pay costs Transwest-ern incurred after February 1, 1989. These costs are attributed to amounts Transwestern was obliged to pay to buyout, buydown, or reform long-term gas contracts with take-or-pay provisions that were entered into, in part, to provide service to Williams. Petitioner therefore argues that it was arbitrary and capricious for FERC to permit Williams to abandon its certified purchaser status without meeting its obligations as to these costs.
Although Transwestern approaches its claim from several different directions, it is important to note, at the outset, what is not at issue. Transwestern does not directly challenge Order No. 490. A petition for review of the order is currently before the Sixth Circuit in Marathon Oil Co. v. FERC, No. 88-3666, but no stay of the order was granted so we must assume its validity for purposes of this case. 15 U.S.C. § 717r(c). Nor does Transwestern challenge the propriety of applying Order No. 490 to the transactions in this case on retroactivity grounds. Transwestern does not argue that FERC could not properly determine that when Williams gave notice under the contract on February 1, 1988, it had “complied with the requirements of Order No. 490.” Order No. 490 did not issue until February 12, 1988, and did not take effect until April 12 of that year, well after Williams had given notice.
Instead, Transwestern contends that Order No. 490 should not have governed FERC's decision. FERC assertedly misreads Transwestern’s settlement agreement with Williams as authorizing Williams to discontinue purchases without liability for subsequent take-or-pay costs. And, even if Williams had no continuing contract obligation to share Trans western’s take-or-pay costs, FERC did have “jurisdiction” over Williams (at least until February 1, 1989, when the one-year notice period had expired) when Transwestern filed its petition for a conditional abandonment. FERC could, and therefore should, have recognized Trans western’s regulatory claim against Williams by conditioning the abandonment. Without overtly challenging Order No. 490, Transwestern nevertheless argues that FERC should make an individualized determination under the Natural Gas Act that any particular abandonment is justified by the public interest. According to Transwestern, abandonment here was not so justified — at least without a condition — because the resulting mismatch between cost incurrence and cost responsibility is contrary to FERC’s traditional policy.
We turn first to the dispute over FERC’s interpretation of the settlement agreement between Transwestern and Williams. It will be recalled that Order No. 490 permits automatic abandonment of the purchaser’s certified duty to take gas if the purchaser’s contract with the seller has expired or the purchaser has given notice, pursuant to the contract, to terminate its purchase obligation. Upon examination of Transwest-ern’s petition, FERC observed that Williams had given the one year notice and that the purchaser’s obligation had expired by the time FERC considered the matter. The contract contained no provision that, on its face, contemplated any continuing obligation on Williams’ part to pay for Transwestern’s take-or-pay costs filed after February 1, 1989. Accordingly, FERC determined that Williams met Order No. 490’s criteria for automatic abandonment.
Transwestern argues that FERC’s examination of the settlement agreement was too cursory. Although Transwestern concedes that there is no specific language in the agreement continuing Williams’ liability, it points to the general reservation of rights clause set forth above. Transwest-ern contends that the clause preserves its claim because the settlement does not affect Transwestern’s “right” to recover Williams’ share of Trans western’s take-or-pay costs. Transwestern, however, does not identify the source of the alleged contract right supposedly preserved by the settlement agreement. Be that as it may, FERC has not purported to resolve definitively whether Transwestern has any continuing contractual claim for take-or-pay liability against Williams. When FERC issued Order No. 490, it said “the nature of the rights granted and whether the right was properly exercised are contractual issues to be determined by a court of competent jurisdiction.” 53 Fed.Reg. 4121 (February 12, 1988). As we understand FERC’s approach under the Order then, it will take only a quick look at a submitted agreement to determine whether the notifying purchaser’s obligation to purchase has ceased. If so, FERC will certify the abandonment, which simply means that the purchaser’s statutory obligation to continue purchasing gas ends. FERC’s order to that effect does not prejudice a seller’s claim under contract law. There is, in other words, no claim preclusion by reason of FERC’s Order.
FERC contends that it is entitled to deference in interpreting the contract for these purposes. To be sure, the contract term was not filed with, and approved by, a regulatory commission — a situation where we would normally afford deference. Cf. Cajun Elec. Power Coop., Inc. v. FERC, 924 F.2d 1132, 1135 (D.C.Cir.1991); National Fuel Gas Supply Corp. v. FERC, 811 F.2d 1563, 1569-71 (D.C.Cir.1987). Still, we defer to FERC because it is reading the contract term for a limited regulatory purpose, almost as an extension of its regulation, and not to determine the parties’ ultimate contractual rights and responsibilities. FERC’s interpretation does not give rise to the specter of res judicata, or the prospect of conflicting decisions in different forums. See Litton Financial Printing Div. v. NLRB, — U.S. -, -, 111 S.Ct. 2215, 2223-24, 115 L.Ed.2d 177 (1991); Local Union 1395, Int’l Bhd. of Electrical Workers v. NLRB, 797 F.2d 1027, 1030 (D.C.Cir.1986).
In the alternative, Transwestern claims that even if Order No. 490 governs, FERC still had the authority to condition Williams’ abandonment. Transwestern did file its abandonment petition a little less than a month before February 1, 1989 (the contract termination date and therefore presumably the effective date of Williams' abandonment). FERC determined, however, that by the time, in the ordinary course of events, it had examined Trans western’s petition, it was moot; the agency blamed Transwestern for having waited 11 months to take action. It would appear that FERC nevertheless could have asserted “jurisdiction” over Williams, but the Commission may well have been entitled to determine that it did not need to do so, given Transwestern’s long delay and its failure either to explain the delay or to bring the petition on an expedited basis. In any event, petitioner does not claim that FERC lacked the authority to decide as it did, so we need not resolve the scope of FERC’s discretion.
Transwestern’s real quarrel with FERC’s application of Order No. 490 is that, notwithstanding FERC’s generic approach, the Commission must still conduct an individualized abandonment proceeding. Of course, if Transwestern’s argument were accepted, Order No. 490 would be a dead letter. Its affirmance by the Sixth Circuit would be meaningless, due to our evisceration of the order. It should be obvious, therefore, that petitioner has brought an impermissible collateral attack on the regulation. This is not a case where a petition plausibly asserts that a rule should not be applied in the case because of unforeseen circumstances or special factors. Panhandle Eastern Pipe Line Co. v. FERC, 907 F.2d 185, 188 (D.C.Cir.1990).
There remains only petitioner’s claim that, even assuming the general propriety of FERC’s generic approach, this case calls for particularized attention because the result deviates from FERC's long-held policy that cost responsibility should match cost incurrence. Transwest-ern contends that if Williams avoids its share of Transwestern’s take-or-pay liability, Williams would escape responsibility for costs incurred on its behalf. FERC, however, correctly responds that in solving the unusual and vexing take-or-pay problems of the 1980s, FERC is authorized to depart from the matching principle. See K N Energy, Inc. v. FERC, 968 F.2d 1295, 1301-02 (D.C.Cir.1992). We see no reason why its application of Order No. 490, as in this case, should be thought an unreasonable extension of this notion.
* * * * *
For the foregoing reasons, we conclude that FERC acted properly when it refused to condition Williams’ abandonment. Thus, the Commission’s decision is affirmed.
So Ordered.
. In an earlier proceeding, the Commission had held that Williams also would remain liable for its share of take-or-pay costs arising from contracts in litigation as of March 31, 1989, because Transwestern had included a "litigation exception” in its tariff filings.
. That is how FERC describes Williams’ actions in its brief. From the context, it is apparent that FERC is referring to February 1, 1988, the date Williams gave the year’s notice (although FERC's order is less clear). Order No. 490, issued subsequently, thereby gives a legal significance to that act, which it arguably did not have at the time it was taken.
. With the exception of the litigation claims.
. Although FERC did approve the main elements of the settlement, see Transwestern Pipeline Co., 38 F.E.R.C. ¶ 61,061 (1987), reh’g granted in part and denied in part, 41 F.E.R.C. ¶ 61,-178 (1987), the Commission did not specifically discuss Art. XVII.
.FERC did not decide whether it might have acted differently if Transwestern’s petition had been filed at the time of Williams’ notice under the contract (or perhaps immediately thereafter).
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_respond1_3_3
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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 "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Your task is to determine which specific federal government agency best describes this litigant.
S & H RIGGERS & ERECTORS, INC., Petitioner, v. OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION and Raymond J. Donovan, Secretary of Labor, Respondents. STANDARD ROOFING & SHEET METAL, INC., Petitioner, v. OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION and Raymond J. Donovan, Secretary of Labor, Respondents. S & H RIGGERS & ERECTORS, INC., Petitioner, v. OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION and Raymond J. Donovan, Secretary of Labor, Respondents.
Nos. 79-2358, 79-3319 and 80-7297.
United States Court of Appeals, Fifth Circuit. Unit B
April 5, 1982.
Stokes & Shapiro, Ira J. Smotherman, Jr., Atlanta, Ga., for petitioner.
Ann D. Nachbar, U. S. Dept. of Labor, Washington, D. C., for respondents in Nos. 79-2358 and 79-3319.
Allen H. Feldman, U. S. Dept. of Labor, Washington, D. C., for respondents in No. 79-2358.
Anthony J. Steinmeyer, Marleigh Dover Lang, Dept, of Justice, Civ. Div., John R. Bradley, Atty., U. S. Dept. of Labor, Robert E. Kopp, Acting Director, Appellate Staff, Civ. Div., Dept, of Justice, Washington, D. C., for respondents in No. 80-7297.
Before GODBOLD, Chief Judge, TUT-TLE and HILL, Circuit Judges.
Former Fifth Circuit case, Section 9(1) of Public Law 96-452—October 14, 1980.
GODBOLD, Chief Judge:
Petitioners S & H Riggers & Erectors, Inc. and Standard Roofing & Sheet Metal, Inc. have applied for attorney fees and other expenses as prevailing parties against respondents Occupational Safety and Health Review Commission and the Secretary of Labor. See S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273 (5th Cir. 1981). Petitioners apply under two provisions of the recently enacted Equal Access to Justice Act (EAJA), P.L. 96-481, Title II, 94 Stat. 2325 (1980). The first provision allows an award of fees for legal expenses incurred at the appellate court level in litigation against the government:
28 U.S.C. § 2412(d)(1)(A):
[A] court shall award to a prevailing party other than the United States fees and other expenses . .. incurred by that party in any civil action . . . brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
In actions for review of agency decisions the second provision allows this court to award in addition fees and expenses incurred at the agency level:
28 U.S.C. § 2412(d)(3):
In awarding fees and other expenses under this subsection to a prevailing party in any action for judicial review of an adversary adjudication, as defined in [5 U.S.C. § 504(b)(1)(C) ] ... the court shall include in that award fees and other expenses to the same extent authorized in subsection (a) of such section, unless the court finds that during such adversary adjudication the position of the United States was substantially justified, or that special circumstances make an award unjust.
5 U.S.C. § 504(a)(1), which this provision references, is substantially identical to the first provision, 28 U.S.C. § 2412(d)(1)(A). Thus, in short, under the EAJA, petitioners are entitled to attorney fees and other expenses unless the government’s position was substantially justified or there are special circumstances.
Respondents raise several substantial objections to an award of fees. We find it necessary to address only the following issues:
1. Whether the EAJA applies retroactively to fees at the agency proceedings that were not pending on the Act’s effective date, October 1, 1981;
2. Whether OSHRC, as an independent adjudicatory agency, should not be charged with fees under the EAJA; and
3. Whether the government’s position on appeal was substantially justified or marked by special circumstances.
I. Retroactivity
The EAJA took effect October 1, 1981 and applies “to any adversary adjudication, as defined in [5 U.S.C. § 504(b)(1)(C)] and any civil action or adversary adjudication described in [28 U.S.C. § 2412], which is pending on, or commenced on or after, such date.” EAJA, P.L. 96-481, Title II, § 208, 94 Stat. 2330 (1980). The agency adversary adjudications involved in this case were not pending October 1,1981, for the case was then on appeal. The Act clearly distinguishes between proceedings at the agency level and proceedings on appeal; thus we decline to view the former as merely a continuation of the latter. See 28 U.S.C. § 2412(d)(3); compare 28 U.S.C. § 2412(d) with 5 U.S.C. § 504. Therefore, only the proceedings before this court are affected by the Act and are a source for the award of attorney fees. Our further discussion is accordingly focused only on 28 U.S.C. § 2412(d)(1) and (2).
II. Liability of OSHRC
OSHRC contends that it would be inappropriate for it to suffer an award of attorney fees because it functions solely as an independent adjudicatory agency, the real party respondent in interest being the Secretary of Labor. OSHRC observes that it is only a nominal respondent, named in this petition for review because of the dictate of FRAP 15(a).
Several circuits have expressed the view that OSHRC is unlike other agencies whose rulings are subject to judicial review in the court of appeals such as the FTC or the NLRB, because OSHRC possesses only adjudicatory functions and powers and has no substantive rulemaking or policymaking prerogative. See Marshall v. OSHRC, 635 F.2d 544 (6th Cir. 1980); Marshall v. Sun Petroleum Products Co., 622 F.2d 1176 (3d Cir. 1980), cert. denied, 449 U.S. 1061, 101 S.Ct. 784, 66 L.Ed.2d 604 (1981); Dale M. Madden Construction Inc. v. Hodgson, 502 F.2d 278, 280 (9th Cir. 1974). Other circuits appeár to disagree, including the former Fifth Circuit, see Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 648 n.8 (5th Cir. 1976); Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1262 (4th Cir. 1974), reasoning that OSHRC, while not possessing substantive rulemaking powers, might be viewed as having a policymaking role in the decision of the adjudicatory cases that come before it, see Gilles, supra, 504 F.2d at 1262.
It is unnecessary for us to resolve this tension in the caselaw or to decide whether OSHRC should never suffer a fee award in a petition for review, because we find that in this case special circumstances make the award of fees unjust. This is one of the two exceptions to 28 U.S.C. § 2412(d)(1)(A). Whether OSHRC has the authority to defend a review of its decision, in this case it did not file a brief or participate in oral argument. Review of its decision was prosecuted solely by the Secretary of Labor. OSHRC was not advancing any policy or legal position; it was merely a nominal party and not a force in prosecuting this appeal. OSHRC’s role with respect to our review was similar to that of a district court in its relation to a case on appeal. It would be manifestly inappropriate for OSHRC to bear a portion of the expenses of the appeal. These are “special circumstances” sufficient to make an award unjust under the Act.
III. Substantial Justification
We turn then to whether the Secretary of Labor’s position before this court was “substantially justified.” We look first to the legislative history of the EAJA for guidance in the application of this term.
The EAJA was enacted as a three-year experiment in the allocation of the costs of litigation involving the government. The Act rejects the traditional “American rule” of attorney fees according to which fees are not awarded unless the suit was prosecuted in bad faith because otherwise the effect would be to penalize and deter good faith litigation, and moves toward the English rule that the prevailing party ordinarily is awarded the costs of litigation. H.R.Rep. No. 1418, 96th Cong., 2d Sess. 8-10 (1980), reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 4986-88. The premise of the English rule is that a fee award is not a sanction to deter or penalize losing litigation but is a proper allocation of the costs of the litigation and a measure that lifts the cost deterrent facing the successful litigant. This view is expressed in the legislative history:
The bill rests on the premise that a party who chooses to litigate an issue against the Government is not only representing his or her own vested interest but is also refining and formulating public policy .... The bill thus recognizes that the expense of correcting error on the part of the Government should not rest wholly on the party whose willingness to litigate or adjudicate has helped to define the limits of Federal authority. Where parties are serving a public purpose, it is unfair to ask them to . . . bear the costs of vindicating their rights.
Id. at 10, 1980 U.S.Code Cong. & Ad.News at 4988-89.
Although this “public purpose” view of private litigation against the government guided the drafters of the Act, it is manifestly not the sole premise of the legislation, for the Act does not adopt the position that the government should compensate all prevailing parties but instead enacts a compromise position embodied in the standard of “substantial justification:”
This standard balances the constitutional obligation of the executive branch to see that the laws are faithfully executed against the public interest in encouraging parties to vindicate their rights.
Id. at 10, 1980 U.S.Code Cong. & Ad.News at 4989.
Despite this lack of a precise theoretical underpinning, some practical articulation of the standard can be derived from further discussion in the legislative history. The standard is not as lenient as that governing fee awards against plaintiffs in Title VII suits, where to avoid the award the plaintiff need only show that the case was nonfrivolous, that is, having some justification, merit or foundation. See Christiansburg Garmet Co. v. EEOC, 434 U.S. 412, 420-21, 98 S.Ct. 694, 699-700, 54 L.Ed.2d 648 (1978). By contrast, under the EAJA, the justification for the government’s position must be “substantial.” Moreover, the burden of demonstrating substantial justification rests with the government. And where a party “prevails upon judicial review of an adversary adjudication, [i]n these cases in particular, where a party has had to engage in lengthy administrative proceedings before final vindication of his or her rights in the courts, the government should have to make a strong showing to demonstrate that its action was reasonable.” H.R.Rep.No.1418, supra, at 10, 18; 1980 U.S.Code Cong. & Ad.News, at 4989, 4997 (emphasis added).
The burden of showing substantial justification for a case that respondents lost is not insurmountable:
The standard ... should not be read to raise a presumption that the Government position was 'not substantially justified, simply because it lost the case. Nor, in fact, does the standard require the Government to establish that its decision to litigate was based on a substantial probability of prevailing.
Id. at 11, 1980 U.S.Code Cong. & Ad.News at 4990. And despite the requirement of a “strong showing” of a substantial justification, the standard is not heightened beyond the requirement that the government show “that its case had a reasonable basis both in law and fact,” for “the test of whether or not a government action is substantially justified is essentially one of reasonableness.” Id. at 11, 1980 U.S.Code Cong. & Ad.News at 4989.
Respondents proffer three areas in which their case has substantial justification. The primary holding in S & H Riggers, supra, is that B & B Insulation Inc. v. OSHRC, 583 F.2d 1364 (5th Cir. 1978), and its progeny, are reaffirmed and that industry practices are controlling in a finding of failure to provide personal protective equipment under 29 C.F.R. § 1926.28(a), absent actual, specific, confirmed knowledge of a need for such equipment. Respondents contend: (1) petitioners had actual knowledge; (2) the obviousness of a hazard is an additional exception to the controlling effect of industry practice; and (3) the Commission’s interpretation of the reasonable man standard, referring to but not giving controlling effect to industry practice, confers sufficient notice to employers that the due process concerns expressed in prior Fifth Circuit opinions are avoided. The actual knowledge position was rejected for lack of substantial evidence. 659 F.2d at 1283-84. It would thus be difficult to say that there was substantial justification for this position. The new obviousness exception offered to the court appears to be simply a diluted version of the actual knowledge exception and was foreclosed by a prior decision, id. at 1282, so there was little basis on which to expect the court to adopt this additional modification of the industry practice rule. We do not decide whether these two contentions fail to discharge the government’s burden, however, because there was substantial justification in the third position.
Prior precedents of the former Fifth Circuit (discussed in S & H Riggers) which looked to industry practice to define the standard of care under 29 C.F.R. § 1926.28(a) were premised in part on the lack of an authoritative interpretation of that provision sufficient to give notice to employers of required conduct. S & H Riggers presented an occasion for fresh consideration of these precedents because the agency enunciated for the first time a standard to be applied under § 1926.28(a), which standard relied in part on industry practice. Id. at 1278. We stated that the new standard “in theory .. . might be adequate to meet requirements of due process” but that it met difficulties in its application because it failed to articulate under what circumstances industry practice would not set the standard of conduct. Id. at 1280-81. One instance where Congress felt that a fee award would be inappropriate occurs when the government is “advancing in good faith a novel but credible extension and interpretation of the law.” H.R.Rep. No. 1418, supra, at 11, 1980 U.S.Code Cong. & Ad.News at 4990. The proposition that the Commission’s new interpretation of § 1926.28(a) cured due process defects perceived in prior Fifth Circuit cases is a “novel but credible extension or interpretation of the law” that has substantial justification. We find that the government has met its burden of making a “strong showing” that its position has a reasonable basis in law.
The application for attorney fees and other expenses is DENIED.
. “United States” is defined to include federal agencies and officers. 28 U.S.C. § 2412(d)(2)(C). “Party” is defined to exclude larger companies and wealthier individuals: A “party” is an individual with a net worth of $1 million or less, a company with a net worth of $5 million or less, or a company with 500 employees or less. Id. at § 2412(d)(2)(B). “Party” appears to be defined differently in the legislative history and in the companion provision, 5 U.S.C. § 504(a) (discussed infra), to include only companies with net worth of $1 million or less and 500 employees or less.
. We need not address the contentions that the government’s position was substantially justified at the agency level, that principles of sovereign immunity preclude our construing the EAJA to apply to fees incurred before its effective date, and that petitioner’s application did not meet the prima facie requirements set forth in 28 U.S.C. § 2412(d)(1)(B).
. This is not so for proceedings before a district court versus proceedings on appeal. Our conclusion might differ in a non-agency case.
. Respondents also contend that, at the appellate court level, an award may be based only on fees incurred after October 1, 1981. They reason that because § 2412 effects a waiver of sovereign immunity, the award of fees must be more explicit with regard to fees incurred before the effective date. Cf. Brookfield Construction Co. v. U. S., 661 F.2d 159 (Ct.Cl.1981) (new interest rate provision applies prospectively only). But see Photo Data, Inc. v. Sawyer, 533 F.Supp. 348 (D.D.C.1982). Our disposition of other issues makes it unnecessary to address this contention.
. Rule 15(a) requires that “[i]n each case [of a petition for review of an agency action] the agency shall be named respondent.”
. Under the Act’s “sunset provision,” the Act is repealed October 1, 1984. 28 U.S.C. § 2412 note.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Which specific federal government agency best describes this litigant?
A. Occupational Safety & Health Administration
B. Occupational Safety & Health Review Commission
C. Office of the Federal Inspector
D. Office of Management & Budget
E. Office of Personnel Management
F. Office of Workers Compensation Program
G. Parole board or parole commisssion, or prison official, or US Bureau of Prisons
H. Patent Office
I. Postal Rate Commission (U.S.)
J. Postal Service (U.S.)
K. RR Adjustment Board
L. RR Retirement Board
Answer:
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sc_certreason
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
WISCONSIN DEPARTMENT OF HEALTH AND FAMILY SERVICES v. BLUMER
No. 00-952.
Argued December 3, 2001
Decided February 20, 2002
Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Kennedy, Souter, Thomas, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, in which O’Connor and Scalia, JJ., joined, post, p. 498.
Maureen McGlynn Flanagan, Assistant Attorney General of Wisconsin, argued the cause for petitioner. With her on the briefs was James E. Doyle, Attorney General.
Jeffrey A. Lamken argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Acting Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, William Ranter, Bruce G. Forrest, Alex Azar II, Sheree R. Kanner, Henry R. Goldberg, Carole F. Kagan, and David R. Smith.
Mitchell Hagopian argued the cause for respondent. With him on the brief were Eva Shiffrin and Sarah Orr.
Thomas C. Fox filed a brief for the American Health Care Association as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for AARP et al. by Rochelle Bobroff, Bruce Vignery, and Michael Schuster; for the Ohio State Bar Association et al. by William J. Browning, Eugene Whetzel, Rene H. Reixach, and A. Frank Johns; for SeniorLAW/Legal Action of Wisconsin, Inc., by Carol J. Wessels; and for the State Bar of Wisconsin’s Elder Law Section by Sara Buscher and Barbara J. Becker.
A brief of amicus curiae was filed for the Medicaid agencies of 14 States by Charles A Miller, joined by the Attorneys General of their respective States as follows: Bill Pryor of Alabama, Carla J. Stovall of Kansas, John J. Farmer of New Jersey, Wayne K. Stenehjem of North Dakota, Betty D. Montgomery of Ohio, Paul G. Summers of Tennessee, Mark L. Shurtleff of Utah, and Christine 0. Gregoire of Washington.
Justice Ginsburg
delivered the opinion of the Court.
This case requires interpretation of the “spousal impoverishment” provisions of the Medicare Catastrophic Coverage Act of 1988 (MCCA or Act), 102 Stat. 754, 42 U. S. C. § 1396r-5 (1994 ed. and Supp. V), a complex set of instructions made part of the federal Medicaid statute. The spousal impoverishment provisions permit a spouse living at home (called the “community spouse”) to reserve certain income and assets to meet the minimum monthly maintenance needs he or she will have when the other spouse (the “institutionalized spouse”) is institutionalized, usually in a nursing home, and becomes eligible for Medicaid.
The Act shelters from diminution a standard amount of assets (called the “community spouse resource allowance,” “CSRA,” or “resource allowance”). The MCCA allows an increase in the standard allowance if either spouse shows, at a state-administered hearing, that the community spouse will not be able to maintain the statutorily defined minimum level of income on which to live after the institutionalized spouse gains Medicaid eligibility.
In determining whether the community spouse is entitled to a higher CSRA, i. e., to shelter assets in excess of the standard resource allowance, Wisconsin, like a majority of other States, uses an “income-first” method. Under that method, the State considers first whether potential income transfers from the institutionalized spouse, which the MCCA expressly permits, will suffice to enable the community spouse to meet monthly needs once the institutionalized spouse qualifies for Medicaid.
Respondent Irene Blumer, whose Medicaid eligibility was delayed by the application of petitioner Wisconsin Department of Health and Family Services’ income-first method, challenges that method as inconsistent with the MCCA provision governing upward revision of the community spouse resource allowance, § 1396r-5(e)(2)(C) (1994 ed.). The Wisconsin Court of Appeals upheld her challenge. We reverse that court’s judgment. Neither the text of § 1396r-5(e)(2)(C) nor the structure of the MCCA, we conclude, forbids Wisconsin’s chosen approach. Consistent with the position adopted by the Secretary of Health and Human Services, we hold that the income-first method represents a permissible interpretation of the Act.
I
A
The federal Medicaid program provides funding to States that reimburse needy persons for the cost of medical care. See Social Security Act, tit. XIX, as added, 79 Stat. 343, and as amended, 42 U. S. C. § 1396 et seq. (1994 ed. and Supp. V). “Each participating State develops a plan containing reasonable standards... for determining eligibility for and the extent of medical assistance” within boundaries set by the Medicaid statute and the Secretary of Health and Human Services. Schweiker v. Gray Panthers, 453 U. S. 34, 36-37 (1981) (internal quotation marks omitted); § 1396a(a)(17) (1994 ed.). In formulating those standards, States must “provide for taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant.” § 1396a(a)(17)(B) (emphasis added).
Because spouses typically possess assets and income jointly and bear financial responsibility for each other, Medicaid eligibility determinations for married applicants have resisted simple solutions. See, e.g., id., at 44-48. Until 1989, the year the MCCA took effect, States generally considered the income of either spouse to be “available” to the other. We upheld this approach in Gray Panthers, observing that “from the beginning of the Medicaid program, Congress authorized States to presume spousal support.” Id., at 44; see id., at 45 (quoting passage from S. Rep. No. 404, 89th Cong., 1st Sess., pt. 1, p. 78 (1965), including statement that “it is proper to expect spouses to support each other”). Similarly, assets held jointly by the couple were commonly deemed “available” in full to the institutionalized spouse.
At the same time, States generally did not treat resources held individually by the community spouse as available to the institutionalized spouse. Accordingly, assets titled solely in the name of the community spouse often escaped consideration in determining the institutionalized spouse’s Medicaid eligibility. See H. R. Rep. No. 100-105, pt. 2, pp. 66-67 (1987).
As Congress later found when it enacted the MCCA in 1988, these existing practices for determining, a married applicant’s income and resources produced unintended consequences. Many community spouses were left destitute by the drain on the couple’s assets necessary to qualify the institutionalized spouse for Medicaid and by the diminution of the couple’s income posteligibility to reduce the amount payable by Medicaid for institutional care. See id., at 66-68. Conversely, couples with ample means could qualify for assistance when their assets were held solely in the community spouse’s name.
In the MCCA, Congress sought to protect community spouses from “pauperization” while preventing financially secure couples from obtaining Medicaid assistance. See id., at 65 (bill seeks to “end th[e] pauperization” of the community spouse “by assuring that the community spouse has a sufficient — but not excessive — amount of income and resources available”). To achieve this aim, Congress installed a set of intricate and interlocking requirements with which States must comply in allocating a couple’s income and resources.
Income allocation is governed by §§1396r-5(b) and (d). Covering any month in which “an institutionalized spouse is in the institution,” § 1396r-5(b)(l) provides that “no income of the community spouse shall be deemed available to the institutionalized spouse.” The community spouse’s income is thus preserved for that spouse and does not affect the determination whether the institutionalized spouse qualifies for Medicaid. In general, such income is also disregarded in calculating the amount Medicaid will pay for the institutionalized spouse’s care after eligibility is established.
Other provisions specifically address income allocation in the period after the institutionalized spouse becomes Medicaid eligible. Section 1396r-5(b)(2)(A) prescribes, as a main rule, that if payment of income is made solely in the name of one spouse, that income is treated as available only to the named spouse (the “name-on-the-check” rule). Section 1396r-5(d) provides a number of exceptions to that main rule designed to ensure that the community spouse and other dependents have income sufficient to meet basic needs. Among the exceptions, § 1396r-5(d)(3) establishes for the community spouse a “minimum monthly maintenance needs allowance,” or MMMNA. The MMMNA is calculated by multiplying the federal poverty level for a couple by a percentage set by the State. Since 1992, that percentage must be at least 150%, §§ 1396r-5(d)(3)(A)-(B), but the resulting MMMNA may not exceed $1,500 per month in 1988 dollars ($2,175 in 2001 dollars), §§ 1396r-5(d)(3)(C), (g).
If the income of the community spouse determined under § 1396r-5(b)(2), which states the “name-on-the-check” rule, is insufficient to yield income equal to or above the MMMNA, § 1396r-5(d)(l)(B) comes into play. Under that provision, the amount of the shortfall is “deducted” from the income of the institutionalized spouse — reducing the amount of income that would otherwise be considered available for the institutionalized spouse’s care — so long as that income is actually made available to the community spouse. The amount thus reallocated from the institutionalized spouse to the community spouse is called the “community spouse monthly income allowance,” or CSMIA, § 1396r-5(d)(l)(B). The provision for this allowance ensures that income transferred from the institutionalized spouse to the community spouse to meet the latter’s basic needs is not also considered available for the former’s care. As a result, Medicaid will pay a greater portion of the institutionalized spouse’s medical expenses than it would absent the CSMIA provision.
Resource allocation is controlled by §§ 1396r-5(c) and (f). For purposes of establishing the institutionalized spouse’s Medicaid eligibility, a portion of the couple’s assets is reserved for the benefit of the community spouse. §1396r-5(c)(2). To determine that reserved amount (the CSRA), the total of all of the couple’s resources (whether owned jointly or separately) is calculated as of the time the institutionalized spouse’s institutionalization commenced; half of that total is then allocated to each spouse (the “spousal share”). § 1396r-5(c)(l)(A). The spousal share allocated to the community spouse qualifies as the CSRA, subject to a ceiling of $60,000 indexed for inflation (in 2001, the ceiling was $87,000) and a floor, set by the State, between $12,000 and $60,000 (also indexed for inflation; in 2001, the amounts were $17,400 and $87,000). §§ 1396r-5(c)(2)(B), (f)(2)(A), (g). The CSRA is considered unavailable to the institutionalized spouse in the eligibility determination, but all resources above the CSRA (excluding a small sum set aside as a personal allowance for the institutionalized spouse, currently $2,000, see 20 CFR §416.1205 (2001)) must be spent before eligibility can be achieved. § 1396r-5(c)(2).
The MCCA provides for a “fair hearing” mechanism through which a couple may challenge the State’s determination of a number of elements that affect eligibility for, or the extent of assistance provided under, Medicaid. §§1396r-5(e). The dispute in this case centers on § 1396r-5(e)(2)(C), which allows a couple to request a higher CSRA. That section provides in relevant part:
“If either... spouse establishes that the [CSRA] (in relation to the amount of income generated by such an allowance) is inadequate to raise the community spouse’s income to the [MMMNA], there shall be substituted, for the [CSRA] under subsection (f)(2) of this section, an amount adequate to provide [the MMMNA].”
If the couple succeeds in obtaining a higher CSRA, the institutionalized spouse may reserve additional resources for posteligibility transfer to the community spouse. The enhanced CSRA will reduce the resources the statute deems available for the payment of medical expenses; accordingly, the institutionalized spouse will become eligible for Medicaid sooner.
In allocating income and resources between spouses for purposes of § 1396r-5(e)(2)(C), the States have employed two divergent methods: an “income-first” method, used by most States; and a “resources-first” method, preferred by the others. The two methods differ in their construction of the term “community spouse’s income” in subsection (e)(2)(C). Under the income-first method, “community spouse’s income” is defined to include not only the community spouse’s actual income at the time of the § 1396r-5(e) fair hearing, but also a potential posteligibility income transfer from the institutionalized spouse — the CSMIA authorized by § 1396r-5(d)(1)(B), see supra, at 481-482. Thus, only if the community spouse’s preeligibility income plus the CSMIA will fall below the MMMNA may the couple reserve a greater portion of assets through an enhanced CSRA.
. The resources-first method, by contrast, excludes the CSMIA from consideration. “Community spouse’s income” under that approach includes only income actually received by the community spouse at the time of the § 1396r-5(e) hearing, not any anticipated posteligibility income transfer from the institutionalized spouse pursuant to § 1396r-5(d)(l)(B). If the community spouse’s income so defined will fall below the MMMNA, the CSRA will be raised to reserve additional assets sufficient to generate income meeting the shortfall, whether or not the CSMIA could also accomplish that task.
In sum, the income-first method, because it takes account of the potential CSMIA, makes it less likely that the CSRA will be increased; it therefore tends to require couples to expend additional resources before the institutionalized spouse becomes Medicaid eligible.
The Secretary of Health and Human Services has issued several statements supporting the income-first method. Initially, the Secretary interpreted the MCCA as requiring state hearing officers to use that method. See HCFA, Chicago Regional State Letter No. 51-93 (Dec. 1993), App. to Pet. for Cert. 78a-83a. More recently, the Secretary has concluded that the Act permits both income-first and “some other reasonable interpretation of the law.” HCFA, Chicago Regional State Letter No. 22-94, p. 2 (July 1994), App. to Pet. for Cert. 89a.
The Secretary has circulated for comment a proposed rule “allowing] States the threshold choice of using either the income-first or resources-first method when determining whether the community spouse has sufficient income to meet minimum monthly maintenance needs.” 66 Fed. Reg. 46763, 46765 (2001). The proposed rule details the Secretary’s reasons for concluding that the Act does not “clearly requir[e] the use of either [method] to the exclusion of the other.” Id., at 46767. Accordingly, “in view of the cooperative federalism considerations embodied in the Medicaid program,” id., at 46765, the Secretary found it appropriate to “leave to States the decision as to which alternative to use,” id., at 46767.
B
The facts of this case illustrate the operation of the Act and the different consequences of the income-first and resources-first. approaches. Irene Blumer was admitted to a Wisconsin nursing home in 1994 and applied for Medicaid assistance in 1996 through her husband Burnett. In accord with § 1396r-5(c), the Green County Department of Human Services (County) determined that as of Irene’s institutionalization in 1994, the couple’s resources amounted to $145,644. Dividing this amount evenly between the Blumers, the County attributed $72,822 to each spouse. Burnett was allocated this $72,822 share as his CSRA, and Irene was entitled to reserve a personal allowance of $2,000, 20 CFR §416.1205 (2001). Combining these sums, the County determined that the Blumers could retain $74,822 in assets.
The County next found that, as of the date of Irene’s application, the Blumers’ resources had been reduced from $145,644 to $89,335. That amount exceeded by $14,513 the couple’s resource eligibility threshold. The County accordingly concluded that Irene would not be eligible for Medicaid until the couple’s assets were spent down to the $74,822 limit.
Seeking to obtain a higher CSRA, Irene requested a hearing. For purposes of the hearing, Burnett’s monthly income amounted to $1,639, consisting of $1,015 in Social Security benefits, $309 from an annuity, and $315 generated by the assets protected in his CSRA. Irene argued that because Burnett’s monthly income fell below the applicable MMMNA of $1,727, the examiner was obliged to increase his CSRA, thereby protecting additional assets capable of covering the income shortfall.
Excluding Irene’s $2,000 personal allowance, the Blumers’ total remaining assets exceeded Burnett’s $72,822 standard CSRA, as just noted, by $14,513, an amount generating roughly $63 in monthly income. Attributing that income to Burnett would have raised his monthly income to $1,702, still $25 short of the MMMNA. Thus, had the hearing officer applied the resources-first method — addressing Burnett’s income shortfall by first reserving additional assets for his benefit — the examiner would have increased Burnett’s CSRA to encompass all of the Blumers’ remaining available resources, and Irene would have become immediately eligible for Medicaid. The remaining $25 deficit in Burnett’s income could then have been covered posteligi-bility by a monthly transfer of income (or CSMIA) from Irene, who at the time of the hearing received $927 per month in Social Security and $336 from a pension.
Wisconsin, however, has adopted the income-first rule by statute:
“If either spouse establishes at a fair hearing that the community spouse resource allowance determined under sub. (6)(b) without a fair hearing does not generate enough income to raise the community spouse’s income to the [MMMNA]..., the department shall establish an amount to be used under sub. (6)(b)3. that results in a community spouse resource allowance that generates enough income to raise the community spouse’s income to the [MMMNA].... Except in exceptional cases which would result in financial duress for the community spouse, the department may not establish an amount to be used under sub. (6)(b)3. unless the institutionalized spouse makes available to the community spouse the maximum monthly income allowance permitted under sub. a)(b).” Wis. Stat. §49.455(8)(d) (1999-2000) (emphasis added).
Applying this rule, the hearing examiner concluded that he was without authority to increase Burnett’s CSRA: The difference between Burnett’s monthly income and the MMMNA could be erased if, after achieving eligibility, Irene made available to Burnett $88 per month from her own income. This, the examiner concluded, Irene would be able to do; accordingly, there was no need to reserve additional assets for Burnett, and no acceleration in Irene’s Medicaid eligibility.
The following table illustrates the differences between the income-first and resources-first methods as applied to the Blumers:
The hearing examiner’s determination was affirmed by the Circuit Court of Green County. The Wisconsin Court of Appeals, however, reversed. Concluding that the MCCA unambiguously mandates the resources-first method, the Wisconsin appellate court declared that the State’s income-first statute impermissibly conflicts with federal law. 2000 WI App. 150, 237 Wis. 2d 810, 615 N. W. 2d 647. The Wisconsin Supreme Court denied discretionary review.
The decision of the Wisconsin Court of Appeals, holding the income-first method impermissible and the resources-first method required, accords with the position adopted by Ohio intermediate appellate courts. See, e. g., Kimnach v. Ohio Dept. of Human Servs., 96 Ohio App. 3d 640, 647, 645 N. E. 2d 825, 829-830 (1994), appeal not allowed, 71 Ohio St. 3d 1447, 644 N. E. 2d 409 (1995). Most courts to consider the issue, however, including the highest courts of New York and Massachusetts, as well as two Federal Courts of Appeals, have upheld the Secretary’s view that the Act permits the income-first method. See Cleary ex rel. Cleary v. Waldman, 167 F. 3d 801, 805 (CA3), cert. denied, 528 U. S. 870 (1999); Chambers v. Ohio Dept. of Human Servs., 145 F. 3d 793, 801 (CA6), cert. denied, 525 U. S. 964 (1998); Golf v. New York State Div. of Soc. Servs., 91 N. Y. 2d 656, 662, 697 N. E. 2d 555, 558 (1998); Thomas v. Commissioner of Div. of Medical Assistance, 425 Mass. 738, 746, 682 N. E. 2d 874, 879 (1997). We granted certiorari to resolve this conflict, 533 U. S. 927 (2001), and now reverse the judgment of the Wisconsin Court of Appeals.
II
The question presented is whether the income-first prescription of the Wisconsin statute, requiring that potential income transfers from the institutionalized spouse be considered part of the “community spouse’s income” for purposes of determining whether a higher CSRA is necessary, conflicts with the MCCA. The answer to that question, the parties agree, turns on whether the words “community spouse’s income” in § 1396r-5(e)(2)(C) may be interpreted to include potential, posteligibility transfers of income from the institutionalized spouse permitted by § 1396r-5(d)(l)(B).
In line with the decision of the Wisconsin Court of Appeals, 2000 WI App. 150, ¶ 20, but in conflict with the weight of lower court authority, see, e. g., Cleary, 167 F. 3d, at 807; Chambers, 145 F. 3d, at 802, Blumer first argues that the plain meaning of the term “community spouse’s income” unambiguously precludes the income-first method. She does not dispute that a monthly allowance regularly transferred from one spouse to the other could qualify as “income” under any relevant definition, but instead focuses on the modifier “community spouse’s,” contending that “[b]y choosing the possessive... Congress clearly expressed its intent that the income possessed by the community spouse” is the relevant measure. Brief for Respondent 16. We disagree. Congress’ use of the possessive case does not demand construction of “community spouse’s income” to mean only income actually possessed by, rather than available or attributable to, the community spouse; to the contrary, the. use of the possessive is often indeterminate. See J. Taylor, Possessives in English: An Exploration in Cognitive Grammar 2 (1996) (“[T]he entity denoted by a possessor nominal does not necessarily possess (in the everyday, legalistic sense of the term) the entity denoted by the possessee.”); see also Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 739 (1996) (questioning characterization of a statutory term as unambiguous when its meaning has generated a division of opinion in the lower courts).
Blumer maintains as well that the “design of the Act as a whole” precludes use of the income-first method. K mart Corp. v. Cartier, Inc., 486 U. S. 281, 291 (1988). She relies heavily, as did the Wisconsin Court of Appeals, 2000 WI App. 150, ¶¶ 21-23, on the Act’s distinction between rules governing the initial Medicaid eligibility determination and those that apply posteligibility to the extent-of-assistance calculation. See Brief for Respondent 17-18. Blumer notes that the (e)(2)(C) hearing to obtain an enhanced CSRA occurs only at the time an eligibility assessment is conducted, while no CSMIA income is transferred until after eligibility has been achieved, see supra, at 481-482. This sequence, she contends, shows that Congress intended the CSRA enhancement and the CSMIA to operate at discrete stages: The former remedies a shortfall in the income possessed by the community spouse prior to eligibility, while the latter provides further relief posteligibility if the previous CSRA enhancement proves inadequate. See Brief for Respondent 18. Because the Wisconsin statute requires imputation of the CSMIA to the community spouse before additional assets may be reserved, Blumer concludes, the statute reverses the priority established by the MCCA.
In accord with the Secretary, we do not agree that Congress circumscribed the (e)(2)(C) hearing in the manner Blumer urges. Although that hearing is conducted pre-eligibility, its purpose is to anticipate the posteligibility financial situation of the couple. The procedure seeks to project what the community spouse’s income will be when the institutionalized spouse becomes eligible. See Tr. of Oral Arg. 14 (officer conducting (e)(2)(C) hearing makes a calculation that “concerns the post eligibility period”; question is will “the at-home spouse... have sufficient income in the post eligibility period, or does the resource allowance need to be jacked up in order to provide that additional income”). The hearing officer must measure that projected income against the MMMNA, a standard ■ that, like the CSMIA, is operative only posteligibility. §§ 1396r~5(b)(2), (d)(3).
In short, if the (e)(2)(C) hearing is properly comprehended as a preeligibility projection of the couple’s posteligibility situation, as we think it is, we do not count it unreasonable for a State to include in its estimation of the “community spouse’s income” in that posteligibility period an income transfer that may then occur.
Blumer’s skewed view of the (e)(2)(C) hearing also underlies the contention, advanced at oral argument, see Tr. of Oral Arg. 6-10, that the income-first method renders meaningless the Act’s key prohibition against deeming income of the community spouse available to the institutionalized one. § 1396r-5(b)(l). According to this argument, including the CSMIA as part of the “community spouse’s income” under subsection (e)(2)(C) effectively converts some income of the institutionalized spouse into income of the community spouse. And prior to eligibility, the argument continues, all of the institutionalized spouse’s income is considered available for medical expenses. § 1396a(a)(10)(A); 42 CFR §435.120 (2000). Thus, the theory concludes, under income-first the CSMIA would, as a logical matter, be considered both “community spouse’s income” and “available” for the institutionalized spouse’s medical expenses in clear contravention of subsection (b)(1).
This argument confuses the inclusion of a projected CSMIA in the preeligibility calculation of the community spouse’s posteligibility income with the actual transfer of income contemplated by the CSMIA provision. The (e)(2)(C) hearing is, again, simply a projection of the state of affairs that will exist posteligibility. The theoretical incorporation of a CSMIA into the community spouse’s future income at that hearing has no effect on the preeligibility allocation of income between the spouses. A CSMIA becomes part of the community spouse’s income only when it is in fact transferred to that spouse, § 1396r-5(d)(l)(B), which may not occur until “[a]fter [the] institutionalized spouse is determined... to be eligible.” § 1396r-5(d)(l). At that point, the actual CSMIA is deducted from the institutionalized spouse’s income, ibid., and is no longer available for medical expenses. Thus, at all times the rule of subsection (b)(1) is honored, for at no time is any income of the community spouse simultaneously deemed available to the institutionalized spouse.
Far from precluding Wisconsin’s chosen approach, the MCCA’s design offers affirmative support for the permissibility of the income-first method, Subsection (b)(1), prohibiting attribution of the community spouse’s income to the institutionalized spouse, has no counterpart running in the opposite direction. Indeed, the Act specifically provides for a transfer of income from the institutionalized spouse to the community spouse through the CSMIA. § 1396r-5(d)(l)(B). Mindful of the Medicaid program’s background principle that “it is proper to expect spouses to support each other,” Gray Panthers, 453 U. S., at 45 (quoting S. Rep. No. 404, pt. 1, at 78) (internal quotation marks omitted), we are satisfied that a State reasonably interprets the MCCA by anticipating the CSMIA in the (e)(2)(C) hearing.
We further note that subsection (e), governing fair hearings in general, is not limited to a redetermination of the CSRA. It also permits a hearing if the couple is dissatisfied with:
“(i) the [CSMIA];
“(ii) the amount of monthly income otherwise available to the community spouse...;
“(iii) the computation of the spousal share of resources under subsection (c)(1) of this section; [and]
“(iv) the attribution of resources under subsection (c)(2) of this section.” § 1396r-5(e)(2)(A).
Given that the CSMIA itself may be adjusted in a fair hearing under subsection (e)(2)(A)(i), we cannot conclude that the States are forbidden to consider the projected CSMIA in the related hearing, authorized by subsection (e)(2)(A)(v), to increase the CSRA. Accord, Cleary, 167 F. 3d, at 810.
H-1 HH
We thus hold that the income-first method is a permissible means of implementing the Act. The parties here have not also disputed the permissibility of the resources-first approach. We therefore do not definitively resolve that matter, although we note that the leeway for state choices urged by both Wisconsin and the United States is characteristic of Medicaid.
The Medicaid statute, in which the MCCA is implanted, is designed to advance cooperative federalism. See Harris v. McRae, 448 U. S. 297, 308 (1980). When interpreting other statutes so structured, we have not been reluctant to leave a range of permissible choices to the States, at least where the superintending federal agency has concluded that such latitude is consistent with the statute’s aims. In Batterton v. Francis, 432 U. S. 416, 429 (1977), for example, we upheld a regulation promulgated by the Secretary of Health, Education, and Welfare affording the States discretion in the implementation of the Aid to Families with Dependent Children (AFDC) unemployed parent program. The challenged regulation allowed States to cover or exclude from coverage persons whose unemployment resulted from participation in a labor dispute or whose conduct would disqualify them for benefits under the State’s compensation law. Noting that the AFDC program involved the “concept of cooperative federalism,” id., at 431, we concluded that the Secretary had the authority to “recognize some local options in determining... eligibility,” id., at 430. Similarly, in Lukhard v. Reed, 481 U. S. 368 (1987), a plurality of this Court concluded that Virginia’s policy of treating personal injury awards as income rather than resources under the AFDC program was reasonable and consistent with federal law, see id., at 377-381. The superintending federal agency, the plurality pointed out, had for many years permitted Virginia’s choice while allowing other States to treat such awards as resources. Id., at 378.
The Secretary of Health and Human Services, who possesses the authority to prescribe standards relevant to the issue here, § 1396a(a)(17), has preliminarily determined that the MCCA permits both the income-first and resources-first methods. See 66 Fed. Reg. 46763, 46767 (2001); HCFA, Chicago Regional State Letter No. 22-94, at 2, App. to Pet. for Cert. 89a. In a recently proposed rule, the Secretary declared that “in the spirit of Federalism,” the Federal Government “should leave to States the decision as to which alternative [income-first or resources-first] to use.” 66 Fed. Reg. 46768, 46767 (2001).
The Secretary’s position warrants respectful consideration. Cf. United States v. Mead Corp., 533 U. S. 218 (2001); Thomas Jefferson Univ. v. Shalala, 512 U. S. 504, 512 (1994) (reliance on Secretary’s “significant expertise” particularly appropriate in the ¡context of “a complex and highly technical regulatory program” (internal quotation marks omitted)); Gray Panthers, 453 U. S., at 43-44 (Secretary granted “exceptionally broad authority” under the Medicaid statute). As Blumer acknowledges, Brief for Respondent 31-32, the MCCA affords large discretion to the States on two related variables: the level of the MMMNA accorded the community spouse, § 1396r-5(d)(3), see supra, at 481, and the amount of assets the couple is permitted to retain, § 1396r-5(f)(2)(A), see supra, at 482-483. Nothing in the Act indicates to us that similar latitude is inappropriate with respect to the application of subsection (e)(2)(C).
Eliminating the discretion to choose income-first would hinder a State’s efforts to “strik[e] its own balance” in the implementation of the Act. Lukhard, 481 U. S., at 383. States that currently allocate limited funds through the income-first approach would have little choice but to offset the greater expense of the resources-first method by reducing the MMMNA or the standard CSRA. Such an alteration would benefit couples seeking Medicaid who possess significant resources — “not... a lot of people” by Blumer’s own account, Tr. of Oral Arg. 38 — while offering nothing to, and perhaps disadvantaging, those who do not, couples for whom the other variables provide the primary protection against spousal impoverishment. Blumer would thus have us conclude that Congress pushed States toward altering standards that affect every person covered by the MCCA in order to install, without any increased spending, a resources-first rule that affects only those whose assets exceed the formula resources allowance. We perceive nothing in the Act contradicting the Secretary’s conclusion that such a result is unnecessary and unwarranted.
* * *
For the reasons stated, the judgment of the Wisconsin Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
The Secretary has delegated his rulemaking power to the Health Care Financing Administration (HCFA), see Statement of Organization, Functions, and Delegations of Authority for the Dept, of Health and Human Services, Pt. F, 46 Fed. Reg. 13262-13263 (1981), now called the Centers for Medicare and Medicaid Services, see 66 Fed. Reg. 35437 (2001). We nevertheless refer throughout this opinion to the Secretary as the entity charged with interpretive authority.
The State must also provide for an “excess shelter allowance” if necessary to cover, inter alia, unusually high rent or mortgage payments. §§ 1396r-5(d)(3)(A)(ii), (d)(4). Either spouse may request a hearing to seek a higher MMMNA for the community spouse; such an increase will be allowed if the couple establishes “exceptional circumstances resulting in significant financial duress.” § 1396r-5(e)(2)(B).
The Act excludes from the definition of “resources” the couple’s home,. one automobile, personal belongings, and certain other forms of property. §§ 1382b(a) (1994 ed. and Supp. V), 1396r-5(c)(5) (1994 ed.).
Once the institutionalized spouse is determined to be eligible, “no resources [gained by] the community spouse shall be deemed available to the institutionalized
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_typeiss
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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 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.
COOPER v. AMERICAN AIRLINES, Inc.
No. 292.
Circuit Court of Appeals, Second Circuit.
April 25, 1945.
Samuel L. Sargent, -of New York City (Joseph A. Fagnant, of New York City, of counsel), for plaintiff-appellant.
Everett W. Bovard, of New York City, for defendant-appellee.
Before L. HAND, CHASE and FRANK, Circuit Judges.
FRANK, Circuit Judge.
Under Rule 17(b), as the plaintiff here is suing in “a representative capacity,” her capacity to maintain the suit must “be determined by the law of the state in which the district court is held” which here is New York.
If plaintiff were suing as an ordinary executrix for the benefit of the general estate of the decedent, the answer to the problem would be clear. For the New York courts refuse generally to allow a suit by a personal representative appointed in another state; and plaintiff concedes that §' 130 of the New York Decedent Estate Law, Consol. Laws c. 13, lacks pertinence here because it applies only to a wrongful death occurring in New York. The repeal of former § 160 of the New York Decedent Estate Law (Laws 1920, c. 919, which provided that a foreign administrator could sue or be sued in the New York courts) leaves the situation just as it was before the enactment of § 160.
The question, then, is a narrow one: Under New York “law,” is there an exception to the general rule (precluding suit by a foreign personal representative) when that representative sues for wrongful death occurring in another state whose wrongful death statute constitutes the representative a nominal plaintiff vested with a cause of action for the sole benefit of specified persons? The decision of the Surrogate, because of the restricted ground on which it rested, has no bearing on that question and is not a bar to the present action.
We assume that, in ascertaining the “law” of New York under Rule 17(b), we must apply the same divining rod as we are told to employ when a case arises under the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. In West v. American Telephone & Telegraph Co., 311 U.S. 223, 61 S.Ct. 179, 183, 85 L.Ed. 139, 132 A.L.R. 956, the Court said that, in such circumstances, intermediate appellate state court decisions must be heeded by a federal court, absent a ruling by the highest state court, unless the federal court is “convinced by other persuasive data that the highest court of the state would decide otherwise.” The district court here because of that admonition, decided for the defendant, relying upon Aleksiak v. Lehigh Valley R. Co., 1935, 245 App.Div. 722, 280 N.Y.S. 43, and Baldwin v. Powell, 267 App.Div. 640, 47 N.Y.S.2d 665.
In Aleksiak v. Lehigh Valley R. Co., 245 App.Div. 722, 280 N.Y.S. 43, the wrongful death action was brought by an administratrix appointed in New Jersey, the beneficiaries being specified persons. In a brief memorandum opinion, the court held that plaintiff lacked capacity to sue. It cited three decisions in none of which had it been decided whether an exception to the general rule should be made on such facts; the latest case cited was Wikoff v. Hirschel, 258 N.Y. 28, 179 N.E. 249, where the question was expressly left open.
In the later case of Baldwin v. Powell, 267 App.Div. 640, 47 N.Y.S.2d 665, a Connecticut administratrix sued in New York on account of the wrongful death of the decedent which had occurred in Florida. The Florida statute, F.S.A. § 768.02, provides that a death action “shall be brought by and in the name of the widow or husband, as the case may be, and where there is neither widow nor husband surviving the deceased, then the minor child or children may maintain an action; and where there is neither widow nor husband, nor minor child nor children, then the action may be maintained by any person or persons dependent upon such person killed for support; and where there is neither of the above classes of persons to sue, then the action may be maintained by the executor or administrator, as the case may be, of the person killed.” But, in the Baldwin case, as no person designated by that statute had survived, the administratrix was suing for the benefit of the general estate. The court, deciding that plaintiff lacked capacity, did not consider whether the result would have been different had the suit been for the benefit of specific persons.
On appeal, this decision was affirmed (after the district court in the instant case had entered its judgment and while this case was on appeal here). See Baldwin v. Powell, 294 N.Y. 130, 61 N.E.2d 412. The court said, in part; “We have pointed out that under the death statute of New York ‘the proceeds of a recovery are held, not as general assets of the estate, but subject to a special trust.’ Davis v. New York Cent. & H. R. R. Co., 233 N.Y. 242, 246, 135 N.E. 277, 278. We have heretofore left open the question whether a foreign administrator suing to recover damages for the death of a decedent is within the general rule ‘that a foreign administrator is without standing in our courts. * * * or may be regarded, if so constituted by the law of the state of the injury, as a special statutory trustee, privileged to sue anywhere. Am. L. Inst., Conflict of Laws, Restatement No. 4, § 432, and cases cited in the explanatory notes; Goodrich, Conflict of Laws, pp. 210, 211.’ Wikoff v. Hirschel, 258 N.Y. 28, 31, 32, 179 N.E. 249, 250. (Italics are new.) That question is n'ot presented in this case. The proceeds of a recovery in this case would be held as general assets of the estate and would not ‘be subject to a special trust.’ Florida East Coast R. R. Co. v. Hayes, 67 Fla. 101, 64 So. 504, 7 A.L.R. 1310; Jacksonville Electric Co. v. Bowden, 54 Fla. 461, 45 So. 755, 15 L.R.A.,N.S., 451. The plaintiff in this case is a foreign administratrix suing for damages for the general estate- of the deceased and has not been constituted by the law of the State of injury a special statutory trustee. She is for that reason without standing in the courts of this State in accordance with the general rule. We decide no other question. Decision of the question left open in Wikoff v. Hirschel, supra, must be postponed until a case is presented where the plaintiff is a foreign administrator suing for the benefit of specified persons.”
We think that, because of this decision, we are obliged to give no weight to the Aleksiak case nor to any possible inferences which might conceivably have been drawn from the Appellate Division’s decision in the Baldwin case, since the highest court of New York has now twice carefully said that the question before us is open and undecided.
In such circumstances, we are tempted to follow the lead of Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, and to direct the district court to withhold decision until the New York Court of Appeals makes an authoritative pronouncement. But Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9, instructs us to yield to no such temptation. We think this case is in that zone in which federal courts must do their best to guess what the highest state court will do.
Perhaps the guessing-guide is this: What would be the decision of reasonable intelligent lawyers, sitting as judges of the highest New York court, and fully conversant with New York “jurisprudence”? An alternative test is' what we conjecture would be the decision of the particular judges who' now constitute that court. Probably the presumption is that the result of the two tests would be identical; but happily we are relieved from the need of considering that question, because, knowing the sitting judges, we feel certain that such a presumption accords with the facts.
After prolonged cerebration, our prophetic judgment is that decision in that court would be for the plaintiff. Under Kentucky “law,” the executrix here is “merely a nominal plaintiff,” and “the real parties in interest are the beneficiaries whom [she] represents.” If those beneficiaries had been permitted to and had brought suit in their own names, unquestionably their action would not have been ousted. To reach a different conclusion because the nominal plaintiff is a “representative” appointed by a court of another state would be to rest judgment, irrationally, on the sheerest verbalism. We have too much respect for the New York Court of Appeals to believe that it would do so.
Reversed.
See, e. g., Petersen v. Chemical Bank, 32 N.Y. 21, 42, 88 Am.Dec. 298.
Baldwin v. Powell, 294 N.Y. 130, 61 N.E.2d 412; Whitford v. Panama R. Co., 23 N.Y. 465; cf. Johnson v. Phoenix Bridge Co., 197 N.Y. 316, 90 N.E. 953; Loucks v. Standard Oil Co., 224 N.Y. 99, 120 N.E. 198.
Wikoff v. Hirschel, 258 N.Y. 28, 179 N.E. 249; Kirkbride v. Van Note, 275 N.Y. 244, 250, 90 N.E.2d 852, 112 A.L.R. 243.
That plaintiff is the domiciliary executrix and was not appointed by a Kentucky court is immaterial. See Compton’s Adm’r v. Borderland, 179 Ky. 695, 201 S.W. 20, L.R.A.1918D, 666; cf. 85 A.L.R. 1250, 1251.
Accordingly, we disregard Diatel v. Gleason, D.C., 22 F.Supp. 355, and J. B. & J. M. Cornell Co. v. Ward, 2 Cir., 168 F. 51, as those cases were decided in accordance with “general law” before the adoption of Rule 17(b) and the decision of Erie R. Co. v. Tompkins, supra.
The opinion does not so state, but the New Jersey statute, unlike that of Kentucky, allows an action only for designated persons and permits no action in any circumstances for the general estate.
The other cases cited were Petersen v. Chemical Bank, 32 N.Y. 21, 88 Am. Dec. 298 (where the court, stating the general’ rule, allowed suit by an assignee of a foreign administrator of a chose in action) and Helme v. Buckelew, 229 N.Y. 363, 128 N.E. 216 ,(a suit against a foreign executrix, in which, stating the general rule, the court held that a statute could not validly remove the immunity of such a person).
The other grounds on which defendant based its motion below wer.e not considered by the district court. We have considered them and think they have no merit,
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
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sc_caseorigin
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160
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
BRADY v. MARYLAND.
No. 490.
Argued March 18-19, 1963.
Decided May 13, 1963.
E. Clinton Bamberger, Jr. argued the cause for petitioner. With him on the brief was John Martin Jones, Jr.
Thomas W. Jamison III, Special Assistant Attorney General of Maryland, argued the cause for respondent. With him on the brief were Thomas B. Finan, Attorney General, and Robert C. Murphy, Deputy Attorney General.
Opinion of the Court by
Mr. Justice Douglas,
announced by Mr. Justice Brennan.
Petitioner and a companion, Boblit, were found guilty of murder in the first degree and were sentenced to death, their convictions being affirmed by the Court of Appeals of Maryland. 220 Md. 454, 154 A. 2d 434. Their trials were separate, petitioner' being tried first. At his trial Brady took the stand and admitted his participation in the crime, but he claimed that Boblit did the actual killing. And, in his summation to the jury, Brady’s counsel conceded that Brady was guilty of murder in thé first degree, asking only that the jury return that verdict “without capital punishment.” Prior to the trial petitioner’s counsel had requested the prosecution to allow him to examine Boblit’s extrajudicial statements. Several of those statements were shown to him; but one dated July 9, 1958, in which Boblit admitted the actual homicide, was withheld by the prosecution and did not come to petitioner’s notice until after he had been tried, convicted, and sentenced, and after his conviction had been affirmed.
Petitioner moved the trial court for a new trial based on the newly discovered evidence' that had been suppressed by the prosecution. Petitioner’s appeal from a denial of that motion was dismissed by the Court of Appeals without prejudice to relief under the Maryland Post Conviction Procedure Act. 222 Md. 442, 160 A. 2d 912. The petition for post-conviction relief was dismissed by the trial court; and on appeal the Court of Appeals held that suppression of the evidence by the prosecution denied petitioner due process of law and remanded the case for a retrial of the question of punishment, not the question of guilt. 226 Md. 422, 174 A. 2d 167. The case is here on certiorari, 371 U. S. 812.
The crime in question was murder committed in the perpetration of a robbery. Punishment for that crime in Maryland is life imprisonment or death, the jury being empowered to restrict the punishment to life by addition of the words “without capital punishment.” 3 Md. Ann. Code, 1957, Art. 27, § 413. In Maryland, by reason of the state constitution, the jury in a criminal case are “the Judges of Law, as well as of fact.” Art. XV, § 5. The question presented is whether petitioner was denied a federal right when the Court of Appeals restricted the new trial to the question of punishment.
We agree with the Court of Appeals that suppression of this confession was a violation of the Due Process Clause of the Fourteenth Amendment. The Court of Appeals relied in the, main on two decisions from the Third Circuit Court of Appeals — United States ex rel. Almeida v. Baldi, 195 F. 2d 815, and United States ex rel. Thompson v. Dye, 221 F. 2d 763 — which, we agree, state the correct constitutional rule.
This ruling is an extension of Mooney v. Holohan, 294 U. S. 103, 112, where the Court ruled on what nondisclosure by a prosecutor violates due process:
“It is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a State has contrived, a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a State to procure the conviction and imprisonment' of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.”
In Pyle v. Kansas, 317 U. S. 213, 215-216, we phrased the.rule in broader terms:
“Petitioner’s papers- are inexpertly drawn, but they do set forth - allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and fróm the deliberate suppression by those same authorities of evidence favorable to him. These allegations sufficiently charge a deprivation of rights guaranteed by the Federal Constitution, and, if proven, would entitle petitioner to release from his present custody. Mooney v. Holohan, 294 U. S. 103.”
The Third Circuit in the Baldi case construed that statement in Pyle v. Kansas to mean that the '“suppression of evidence favorable” to the accused was itself sufficient to amount to a denial of due process. 195 F. 2d, at 820. In Napue v. Illinois, 360 U. S. 264, 269, we extended, the test formulated in Mooney v. Holohan when we said: “The same result obtains when the State, although not soliciting false evidence, allows it to go' uncorrected when it appears.” And see Alcorta v. Texas, 355 U. S. 28; Wilde v. Wyoming, 362 U. S. 607. Cf. Burley v. Mayo, 351 U. S. 277, 285 (dissenting opinion).
We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.
The principle of Mooney v. tiolohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused, Society wins not only when the guilty are convicted but when criminal trials are fair; o.ur 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.” A prosecution that withholds evidence on demand of an accused which, if made available, would tend to excúlpate him or reduce the penalty-helps shape a trial that bears heavily-on .the defendant.That- casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as.in the present case, his action is not “the-result of guile,” to use the words of the Court of Appeals. 226 Md., at 427, 174 A. 2d, at 169.
The question rernains whether petitioner was denied a constitutional right'when the Court of Appeals restricted his new trial to the qúestion of punishment. In justification of that ruling the Court of Appeals stated:
“There is considerable doubt as to how much good Boblit’s undisclosed confession would have done' Brady if it had been before- the jury. It clearly implicated Brady as being the one who wanted to strangle the victim, Brooks. Boblit, according to this statement, also favored killing him, -but he wanted to do it by shooting. We cannot put ourselves in the place of the jury and assume what their views would have been as to whether it did or did riot matter whether it was Brady’s hands or Boblit’s hands that twisted’ the shirt about the victim’s neck. ... [I]t would be 'too dogmatic’ for us to say that the jury would not have attached any significance to this evidence in considering the punishment of the defendant Brady.
“Not without some doubt, we conclude that the withholding of this particular confession of Boblit’s was prejudicial to the defendant Brady. . . .
“The appellant’s sole claim of prejudice goes to the punishment imposed. • If Boblit’s withheld confession had been before the jury, nothing in it could have reduced the appellant Brady’.s offense below murder in the first degree. We, therefore, see no occasion to retry that issue.” 226 Md., at 429-430, 174 A. 2d, at 171. (Italics added.)
If this were a jurisdiction where the jury was not the judge of the law, a different question would be presented. But since it is, how can the Maryland Court of Appeals state that nothing in the suppressed confession could have reduced petitioner’s offense “below murder in the first degree”? If, as a matter of Maryland law, juries in criminal cases could determine the admissibility of such evidence on the issue of innocence or guilt, the question would seem to be foreclosed.
But Maryland’s cqnstitutional provision making the jury in criminal cases “the Judges of Law” does not mean precisely what it seems to say. The present status of that provision was reviewed recently in Giles v. State, 229 Md. 370, 183 A. 2d 359, appeal dismissed, 372 U. S. 767, where the several exceptions, added by statute or carved out by judicial construction, are reviewed. One of those exceptions, material here, is that “Trial courts have always passed and still pass upon the admissibility of evidence the jury may consider on the issue of the innocence or guilt of the accused.” 229 Md., at 383, 183 A. 2d, at 365. The cases cited make up a long line going back nearly a century. Wheeler v. State, 42 Md. 563, 570, stated that instructions to the jury were advisory only, “except in regard to questions as to what shall be considered as evidence.” And the court “having such right, it follows of course, that it also has the right to prevent counsel from arguing against such an instruction.” Bell v. State, 57 Md. 108, 120. And see Beard v. State, 71 Md. 275, 280, 17 A. 1044, 1045; Dick v. State, 107 Md. 11, 21, 68 A. 286, 290. Cf. Vogel v. State, 163 Md. 267, 462 A. 705.
We usually walk on- treacherous ground when we explore state law, for state courts, state agencies, and state legislatures are its final expositors under our federal regime. But, as we read the Maryland decisions, it is the court, not the jury, that passes on the “admissibility of evidence” pertinent to “the issue of the innocence or guilt of the accused.” Giles v. State, supra. In the present case a unanimous Court of Appeals has said that nothing in the suppressed copfession.“could have reduced the appel-]ant Brady’s offense below murder in the first degree.” We read that statement as a ruling on the admissibility of the confession on the issue of innocence or guilt. A sporting theory of justice might assume that if the. suppressed. confession had been used at the first trial, the judge’s ruling that it was not admissible on the issue of innocence or guilt might have been flouted by the jury just as might have been done if the court had first admitted a confession and then stricken it from the record. But we cannot raise that trial strategy to the dignity of a constitutional right and say that the deprival of this defendant of that sporting chance, through the use of a bifurcated trial (cf. Williams v. New York, 337 U. S. 241) denies him due process or violates the Equal Protection Clause of the Fourteenth Amendment.
Affirmed.
Separate opinion of
Mr. Justice White.
.1. The Maryland Court of Appeals declared, “The suppression or withholding by the State of material evidence exculpatory to an accused is a violation, of due process” without citing the United States Constitution or the Maryland Constitution which also has a due process clause. We therefore cannot be sure which Constitution was invoked by the court below and thus whether the State, the only party aggrieved by this portion of the judgment, could even bring the issue here if it desired to do so. See New York City v. Central Savings Bank, 306 U. S. 661; Minnesota v. National Tea Co., 309 U. S. 551. But in any event, there is no cross-petition by the. State, nor has it challenged the correctness of the ruling below that a new trial on punishment' was called for by the requirements of due process. In my view, therefore, the Court should not reach the due process question which it decides. It certainly is not the case, as it may be suggested, that without it we would have only a state law question, for assuming the court below was correct in finding a violation of petitioner’s rights in the suppression of evidence, the federal question he wants decided here still remains, namely, whether denying him a new trial on guilt as well as punishment deprives him of equal protection. There is thus a federal question to. deal with in this Court, cf. Bell v. Hood, 327 U. S. 678, wholly aside from the due process question involving the suppression of evidence. The majority opinion makes this unmistakably clear. Before dealing with the due process issue it says, “The question presented is whether petitioner was denied a federal right when the Court of Appeals restricted the new trial to the question of punishment.” After discussing at some length and disposing of the suppression matter in federal constitutional terms it says the question still to be decided is the same as it was before: “The question remains whether petitioner was denied a constitutional right when the Court of Appeals restricted his new trial to the- question of punishment.”
The result, of course, is that the due process discussion by the Court is wholly advisory.
2¿ In Any event the Court's due process advice goes substantially beyond the holding below. I would employ more confining language and would not cast in constitutional form a broad rule of criminal discovery. Instead, I would leave this task, at least for now, to the rule-rnakiñg or legislative process after full consideration by legislators, bench, and bar.
3. I concur in the Court’s disposition of petitioner’s equal protection argument.
Neither party suggests that the decision below is not a “final judgment” within the meaning of 28 U. S. C. § 1257 (3), and no attack on the reviewability of the lower court’s judgment could be successfully maintained. For the general rule that “Final judgment in a criminal case means sentence. The sentence is the judgment” (Berman v. United States, 302 U. S. 211, 212) cannot be applied here. If in fact the Fourteenth Amendment entitles petitioner to a new trial on the issue of guilt as well as punishment the ruling below has seriously prejudiced him. It is the right to a trial on the issue of guilt “that presents a serious and unsettled question” (Cohen v. Beneficial Loan Corp., 337 U. S. 541, 547) that “is fundamental to the further conduct of the case” (United States v. General Motors Corp., 323 U. S. 373, 377). This question is “independent of, and unaffected by” (Radio Station WOW v. Johnson, 326 U. S. 120, 126) what may transpire in a trial at which petitioner can receive only a life imprisonment or death sentence. It cannot be mooted by such a proceeding. See Largent v. Texas, 318 U. S. 418, 421-422. Cf. Local No. 438 v. Curry, 371 U. S. 542, 549.
Judge Simon E. Sobeloff when Solicitor General put the idea as follows in an address before the Judicial Conference of the Fourth Circuit on June 29,1954:
“The Solicitor General is hot a neutral, he is an advocate; but an advocate for a client whose business is not merely to prevail in the instant case. ■ My client’s chief business is not to achieve victory but to establish justice. We are constantly reminded of the now classic words penned by one of my illustrious predecessors, Frederick. William Lehmann, that the Government wins its point when justice is done in its courts.”
See Dennis, Maryland’s Antique Constitutional Thorn, 92 U. of Pa. L. Rev. 34, 39, 43; Prescott, Juries as Judges of the Law: Should the Practice be Continued, 60 hid. St. Bar Assn. Rept. 246, 253-254.
For one unhappy incident of recent vintage see Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 309 U. S. 4, that replaced an earlier opinion in the same case, 309 U. S. 703.
“In the matter of confessions a hybrid situation exists., It is the duty of the' Court to determine from the proof, usually taken out of the presence ■ of the jury, if they were freely and voluntarily made, etc., and admissible. If admitted, the jury is entitled to hear and consider proof of the circumstances surrounding their obtention, the -better to determine their weight and sufficiency. The fact that the Court-admits them'clothes them with no presumption for the jury’s purposes that they are either true or were freely and voluntarily made. However, after a confession has been admitted and read to the jury the judge may change his mind and strike it out of the record. Does he strike it out of the jury’s mind?” Dennis, Maryland’s Antique Constitutional Thorn, 92 U. of Pa. L. Rev. 34, 39. See also Bell v. State, supra, at 120; Vogel v. State, 163 Md., at 272, 162 A., at 706-707.
Md. Const., Art. 23; Home Utilities Co., Inc., v. Revere Copper & Brass, Inc., 209 Md. 610, 122 A. 2d 109; Raymond v. State, 192 Md. 602, 65 A. 2d 285; County Comm'rs of Anne Arundel County v. English, 182 Md. 514, 35 A. 2d 135; Oursler v. Tawes, 178 Md. 471, 13 A. 2d 763.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
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066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
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069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
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092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
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096. Oklahoma Eastern U.S. District Court
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099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
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102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
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105. South Carolina U.S. District Court
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108. Tennessee Middle U.S. District Court
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110. Texas Eastern U.S. District Court
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114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
|
songer_usc1sect
|
158
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FOURCO GLASS COMPANY, Rolland Division, Respondent.
No. 80-1705.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 5, 1981.
Decided April 22, 1981.
David R. Marshall, Law Clerk, N. L. R. B. (William A. Lubbers, General Counsel, John E. Higgins, Jr., Deputy General Counsel, Robert E. Allen, Acting Associate General Counsel, Elliott Moore, Deputy Associate General Counsel, Vivian A. Miller, Washington, D. C., on brief), for petitioner.
Robert B. Vining, Jr., Clayton, Mo., for respondent.
Before WIDENER and SPROUSE, Circuit Judges, and WILLIAMS , District Judge.
Richard L. Williams, United States District Judge for the Eastern District of Virginia, sitting by designation.
SPROUSE, Circuit Judge:
The National Labor Relations Board petitions for enforcement of its July 24, 1980 decision and order finding respondent Four-co Glass Company in violation of sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), 158(a)(5).
Fourco’s Rolland Division manufactures glassware at its Clarksburg, West Virginia plant. Its employees have been represented by a union for thirty years. In July 1979 a collective bargaining agreement was in effect and was not due to expire until April 1, 1980. Under this agreement, between 25 and 50 of the 200 production employees participated in an incentive pay program.
Fourco in July 1979 unilaterally eliminated the incentive program and implemented a new wage plan which included a new hourly rate. It had met with union representatives on several occasions prior to that time seeking, without success, their approval of these changes. After appropriate proceedings, the Board found Fourco’s unilateral decision an unfair labor practice and ordered it to reinstate the incentive program, post the customary Board notices, and compensate involved employees for lost wages.
Fourco and the union subsequently renegotiated their collective bargaining agreement, replacing the one that terminated on April 1, 1980. Fourco and the union agreed that the employees would be paid a lump sum for the untimely elimination of the incentive program as a complete and final settlement of the case sub judice. The union agreed to request the Board that the charge involved in this case be withdrawn.
Inasmuch as the issues underlying this controversy are moot, we deny enforcement. It is true a private settlement does not bar a Board-ordered remedy necessary to effectuate the purposes of the Act, NLRB v. Threads, Inc., 308 F.2d 1 (4th Cir. 1962), that the cessation of unfair labor practices does not necessarily eliminate the need for court enforcement of a Board order, NLRB v. Raytheon Co., 398 U.S. 25, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970); NLRB v. Mexia Textile Mills, Inc., 339 U.S. 653, 70 S.Ct. 826, 94 L.Ed. 1067 (1950), and that an order in such circumstances may be enforced to deter future misconduct. NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). However, none of the policy reasons which suggested the need for enforcement in those cases are present here.
Fourco is undergoing the economic difficulty now being experienced by much of the glass industry, a difficulty unfortunately shared by its employees. Together they have resolved their difficulties in a manner which, obviously, they hope will advance their joint effort to remain economically viable. We do not suggest that a dispute settlement between a union and a financially-plagued company will always render a Board order moot. Nevertheless, although Fourco violated the Act in unilaterally terminating part of an existing wage agreement, its actions, under the discrete circumstances of this case, are not of the kind that require continued Board scrutiny.
ENFORCEMENT DENIED.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29? Answer with a number.
Answer:
|
sc_casedisposition
|
D
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
TREVINO v. TEXAS
No. 91-6751.
Decided April 6, 1992
Per Curiam.
I
The State of Texas charged petitioner Joe Mario Trevino for the murder and rape of Blanche Miller, a capital offense. On February 1, 1984, before jury selection, petitioner filed a “Motion to Prohibit the State from Using Peremptory Chai-lenges to Strike Members of a Cognizable Group.” The motion recited:'
“The Accused requests of the Court that the State of Texas be prohibited from its use of peremptory challenges to strike prospective jurors merely based on the fact of race. The prosecution, the State of Texas, historically and habitually uses its peremptory challenges to strike black people and other minorities who are otherwise qualified. These peremptory challenges are exercised by the State of Texas to strike prospective black jurors in its effort to produce an ethnically pure, all white, jury. This common use of the State’s peremptory challenge in a criminal trial deprives the Accused of due process and a fair trial. This practice deprives the Accused of a jury representing a fair cross-section of the community in violation of the Sixth Amendment to the United States Constitution.
“A hearing is requested on this Motion.” 1A Record 280.
The trial court delayed ruling on the motion until the voir dire. During the course of voir dire, the prosecution exercised its peremptory challenges to excuse the only three black members of the venire. After each of these peremptory strikes, petitioner, who is Hispanic, renewed his motion, asking that the prosecution state its reasons for striking the jurors. The first time petitioner renewed the motion, the court stated: “I know of no requirement yet for either party to announce his reasons for exercising a preemptory [sic] challenge. Can you cite me some law on that?” 11 Record 356. In response, petitioner’s counsel cited McCray v. Abrams, 576 P. Supp. 1244 (EDNY), aff’d in part and rev’d in part, 750 F. 2d 1113 (CA2 1984). He went on to note that when we denied the petition for a writ of certiorari in McCray v. New York, 461 U. S. 961 (1983), five Justices expressed the view that Swain v. Alabama, 380 U. S. 202 (1965), ought to be reexamined. 11 Record 356. The trial court denied petitioner’s motion, and denied it again after two more black venire members were excluded.
The all-white jury returned a verdict of guilty and after a sentencing hearing returned affirmative answers to the two special questions posed by the court. See Jurek v. Texas, 428 U. S. 262, 267-269 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). As required under such circumstances, see ibid., the trial court sentenced petitioner to death. Petitioner appealed to the Court of Criminal Appeals of Texas, filing his brief on December 19, 1985. This is the cause now before us. He cited 24 errors in the guilt and punishment phases of the trial court proceedings. The only one of concern now is the prosecutor’s use of peremptory challenges based on race.
Petitioner contended in the Court of Criminal Appeals that the prosecution’s race based use of challenges violated his “rights to due process of law and to an impartial jury fairly drawn from a representative cross section of the community.” Brief for Appellant in No. 69337, p. 11. He found these rights in “the Sixth and Fourteenth Amendments to the United States Constitution,” as well as provisions of the Texas Constitution. Ibid. He asserted he was renewing the objections pressed at trial. Ibid. He acknowledged that under Swain v. Alabama, the use of peremptory challenges to discriminate in a single case would not be an equal protection violation but noted that in Batson v. Kentucky, cert. granted, 471 U. S. 1052 (1985), we would reconsider the question under the Sixth Amendment. When his brief was filed, we had heard oral argument in Batson but had not announced our decision. Petitioner urged that even if Bat-son did not alter the requirement of alleging an overall scheme of discrimination, the Court of Criminal Appeals should prohibit peremptory challenges based on race as a matter of state law.
On April 30, 1986, not long after petitioner filed his brief in the Court of Criminal Appeals, our decision in Batson came down. Batson v. Kentucky, 476 U. S. 79. The case announced the now familiar rule that when a defendant makes a prima facie showing that the State has exercised its peremptory challenges to exclude members of the defendant’s racial group, the State bears the burden of coming forward with a race neutral justification. Just over a month after Batson was decided, the State filed its brief in the Court of Criminal Appeals. The State argued Batson could not avail petitioner because he is not a member of the same race as the excluded jurors. According to the State, petitioner’s claim could not be considered an equal protection claim but was instead a claim that he was entitled to a jury composed of a “fair cross-section” of the community. Brief for Appellee in No. 69337, pp. 15-17. In drawing this distinction, the State relied on the view that a criminal defendant does not state an equal protection claim unless he alleges that the excluded jurors are members of the same protected class as he. We rejected this view last Term in Powers v. Ohio, 499 U. S. 400 (1991).
The Court of Criminal Appeals of Texas, sitting en banc, affirmed petitioner’s conviction and sentence on June 12, 1991, and denied petitioner’s application for rehearing on September 18, 1991. The opinion of the Court of Criminal Appeals does not set forth the reason for the delay of over five years between the submission of briefs and the resolution of the appeal. With respect to the peremptory challenge question, the court stated that the argument was foreclosed by Holland v. Illinois, 493 U. S. 474 (1990), in which we held that the Sixth Amendment does not prohibit the prosecution from exercising its peremptory challenges to exclude potential jurors based on race. 815 S. W. 2d 592, 598. In a footnote, the Court of Criminal Appeals stated that the arguments in petitioner’s brief did not amount to reliance on the Equal Protection Clause. Id., at 598, n. 3. The court’s opinion cited neither Powers nor Ford v. Georgia, 498 U. S. 411, which we decided on February 19, 1991. We now grant certiorari.
II
In Ford v. Georgia, we addressed what steps a defendant in a criminal case was required to take to preserve an equal protection objection to the State’s race based use of peremptory challenges during the pre-Batson era. Here we consider whether petitioner took those steps.
In Ford, the petitioner filed a pretrial “Motion to Restrict Racial Use of Peremptory Challenges,” 498 U. S., at 413, wording which is in all material respects parallel to the present petitioner’s pretrial “Motion to Prohibit the State from Using Peremptory Challenges to Strike Members of a Cognizable Group.” The ultimate issue in Ford concerned the validity of a state procedural rule, but before reaching it we ruled on a preliminary issue, and that ruling is dispositive here. We stated:
“The threshold issues are whether and, if so, when petitioner presented the trial court with a cognizable Batson claim that the State’s exercise of its peremptory challenges rested on the impermissible ground of race in violation of the Equal Protection Clause of the Fourteenth Amendment. We think petitioner must be treated as having raised such a claim, although he certainly failed to do it with the clarity that appropriate citations would have promoted. The pretrial motion made no mention of the Equal Protection Clause, and the later motion for a new trial cited the Sixth Amendment, not the Fourteenth.” Id., at 418.
Despite the inartfulness of the Ford petitioner’s assertion of his rights, we held he had presented his claim to the trial court. We noted that his reference in his motion to exclusion of black jurors “ ‘over a long period of time,’ ” and his argument to the same effect “could reasonably have been intended and interpreted to raise a claim under the Equal Protection Clause on the evidentiary theory articulated in Batson’s antecedent, Swain v. Alabama.” Id., at 419. We placed this interpretation on the reference to history because the standard of proof for an equal protection violation under Swain required a showing of racial exclusion in “case after case.” 380 U. S., at 223.
In the matter now before us petitioner also relied on a claim of a historical pattern of discriminatory use of peremptory challenges. That alone would have been sufficient under Ford to place the equal protection claim before the trial court. Of course, petitioner did more. He made an express reference to Swain in his argument to the trial court. 11 Record 356. In fact, petitioner argued that we would modify Swain’s burden of proof and that the Texas courts should anticipate our decision. We decide that petitioner presented his equal protection claim to the trial court.
We determine further that petitioner preserved his equal protection claim before the Court of Criminal Appeals. His argument caption made an express reference to the Fourteenth Amendment, and the issue presented for review was the very one that he had raised before the trial court.
The State in its brief to the Court of Criminal Appeals recognized that petitioner’s argument contained an equal protection claim, albeit one which the State believed to lack merit. The State did not argue that petitioner was not making an equal protection claim but that petitioner’s equal protection claim had no legal support. Given our later holding in Powers v. Ohio, supra, the State’s contention is incorrect.
We cannot ignore the fact that were we to hold petitioner had forfeited his equal protection claim by failing to state it with sufficient precision, we would be applying a stricter standard than applied in Batson itself. There petitioner had conceded in the state courts that Swain foreclosed a direct equal protection claim, and he based his argument on the Sixth Amendment and a provision of the Kentucky Constitution. Batson v. Kentucky, 476 U. S., at 83. Yet we treated his allegation of a violation of the Fourteenth Amendment as sufficient to present the question. Id., at 84-85, n. 4. Because petitioner’s case is here on direct review, he is entitled to the rule we announced in Batson. Compare Griffith v. Kentucky, 479 U. S. 314 (1987) (giving retroactive application to Batson for cases pending on direct review or not yet final when Batson was decided), with Teague v. Lane, 489 U. S. 288, 296 (1989) (denying similar application for cases on collateral review).
The motion of petitioner for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted, the judgment of the Court of Criminal Appeals of Texas is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_r_subst
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
The PORT OF PORTLAND, a municipal corporation, Plaintiff-Appellee, v. AN ISLAND IN the COLUMBIA RIVER et al., Defendants-Appellants.
No. 71-2482.
United States Court of Appeals, Ninth Circuit.
May 25, 1973.
Rehearing Denied June 19, 1973.
See also D.C., 315 F.Supp. 1160.
Alfred A. Hampson, of Williams, Montague, Stark, Hiefield & Norville, Portland, Or., for defendants-appellants.
Slade Gorton, Atty. Gen., Theodore 0. Torve, Asst. Atty. Gen., Olympia, Or., Robert L. Myers, of Shuler, Rankin, Myers, Walsh & Ragen, Duane Yergeer, of Vergeer, Samuels, Roehr & Sweek, Portland, Or., for plaintiff-appellee.
Before CHAMBERS, ELY and WRIGHT, Circuit Judges.
EUGENE A. WRIGHT, Circuit Judge:
Sand Island, in the Columbia River, was the object of an action to quiet title which gave rise to this appeal. An Interstate Compact in 1958 between Washington and Oregon placed it within the latter state. We are concerned with its status before that date.
The district court held that the island was within the State of Oregon at all times in question. We find the district court applied the wrong legal standard and we must reverse and remand for a new trial.
Sand Island emerged in the Columbia River as the result of alluvial deposits which first appeared on charts as sand bars and shoal water after both Oregon and Washington had been admitted to the Union. The island even now is not entirely stationary, but has remained in its general location for many years.
The plaintiff, a municipal corporation of the State of Oregon, claims title to the island under a 1970 deed from the State of Oregon. The defendant-appellants claim title under a 1929 deed from the State of Washington. If that instrument was effective to convey the island to the appellants’ predeeessor-in-interest, then the Port of Portland was not entitled to a decree quieting title in its favor. If the State of Washington owned Sand Island in 1929, it is conceded that its deed at that time was effective.
The boundary of the State of Oregon was established by the Oregon Admission Act of 1859, 11 Stat. 383. The Act describes the boundary as follows:
“Beginning one marine league at sea due west from the point where the forty-second parallel of north latitude intersects the same; thence northerly, at the same distance from the line of the coast, lying west and opposite the State, including all islands within the jurisdiction of the United States to a point due west and opposite the middle of the north ship channel of the Columbia River; thence easterly, to and wp the middle channel of said river, and, where it is divided by islands, up the middle of the widest channel thereof, to a point near Fort Walla-Walla. .” (Emphasis supplied.)
The italicized part of the boundary definition applies here. The district court concluded that the 1929 boundary between Washington and Oregon was the middle of the channel of the Columbia running north of Sand Island because the river was divided by an island and the widest channel of the river was to the north of Sand Island.
The appellants contend that the district court misread the statutory boundary definition and they urge that the “widest channel test” applies only when the “main channel” is divided by one or more islands. The lower court made no finding either that the main channel was divided by Sand Island or that the main channel in 1929 ran north of Sand Island. For that reason appellants urge that the judgment must be reversed.
As we have noted, we agree that the judgment cannot stand. Our reasons are quite apart from the resolution of the issue presented by the parties on the proper antecedent of the word “thereof” in the boundary definition. In our view the lower court erred in applying the “widest channel test” because Congress did not intend that islands such as Sand Island, formed after the admission of Oregon to the Union, should be considered in fixing the Oregon-Washington boundary.
The location and ownership of islands formed after 1859, read in connection with the boundary definition, present questions which apparently have not previously been presented to any court. Neither the “plain language” of the Admission Act, nor the legislative history thereof, gives one much guidance in resolving this issue. But in our opinion the relative neutrality of the language chosen and the paucity of legislative history on or near the point are factors which indicate that no dramatic deviation from the common law was intended.
Islands in rivers are generally formed in two ways:
“by accretions produced by the deposit at a particular place of the soil and sand constantly floating in it, and by the river cutting a new channel through the mainland on one or the other of its shores.” Missouri v. Kentucky, 11 Wall. (78 U.S.) 395, 407, 20 L.Ed. 116 (1870).
If the island is formed in the second way, by avulsion, the common law is well settled that, if the boundary between two states (or private property owners) is the river, the boundary remains the old channel and the island would belong to the owner of the mainland to which it was previously attached. Nebraska v. Iowa, 143 U.S. 359, 12 S.Ct. 396, 36 L.Ed. 186 (1892); Missouri v. Nebraska, 196 U.S. 23, 25 S.Ct. 155, 49 L.Ed. 372 (1904); Missouri v. Kentucky, supra.
If the island is formed by gradual deposits in midstream, it is equally well settled under the common law that the island belongs to the owner of the river bed in the place where the island arose. If the river is the boundary between two states the island would belong to the state on whose side of the middle of the main channel it was formed. St. Louis v. Rutz, 138 U.S. 226, 11 S.Ct. 337, 34 L.Ed. 941 (1891); Jones v. Soulard, 24 How. (65 U.S.) 41, 16 L.Ed. 604 (1860); 5A Thompson on Real Property § 2564 at 620 (1957 ed.).
Were after-formed islands to bring the widest channel test into play both of the above common law results would be altered. If a new island were formed by avulsion and the new channel were wider than the old one (as it generally would be) then, by application of the statutory boundary definition including the after-formed island, the new land would suddenly be part of the state which owned the opposite bank of the old channel.
Likewise, if a new island were formed by deposits .in the river bed (as Sand Island evidently was), the boundary would be the wider channel on either side of the island, irrespective of where, in relation to the middle of the main channel, the island was formed. Moreover, if the island continued to grow on both sides by accretion, the boundary could well shift back and forth as first one channel and then the other momentarily became the “widest channel”!
We perceive no good reason for concluding that Congress intended by the Oregon Admission Act to achieve results so far removed from what had theretofore been settled law. Consequently, we hold that islands such as Sand Island, formed subsequently to 1859, are not to be considered in determining the Oregon boundary prior to the 1958 compact. The boundary remains what it was in 1859, the varying center of the main channel subject to such modifications as have been made by compact, which, as against defendants, cannot be made retroactive as to their property interests.
While one could well infer from the evidence presented that the main channel has always been south of Sand Island, the trial court made no finding on this point. Because the case was apparently tried by the parties on the wrong theory we think the best resolution is for this court to order a new trial so that new evidence can be taken and new findings made.
Reversed and a new trial ordered.
. When Washington was admitted to the Union in 1889 the same language (with one minor modification not relevant here) was used to define its boundary along the Columbia River, 25 Stat. 676. In any event the language of the Washington Admission Act cannot affect Oregon’s rights for
“[t]he northern boundary of the state of Oregon was established prior to that of the state of Washington, and it is not within the power of the national government to change that boundary without the consent of Oregon.” Washington v. Oregon, 211 U.S. 127, 130-131, 29 S.Ct. 47, 53 L.Ecl. 118 (1908).
. Though the Act speaks of the “middle channel” the Supreme Court held in Washington v. Oregon, 214 U.S. 205, 216, 29 S.Ct. 631, 53 L.ED. 969 (1909) that the language should properly be construed as “the middle of the main channel.”
Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
|
sc_issue_1
|
12
|
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.
IN RE GROBAN et al.
No. 14.
Argued November 6, 1956.
Decided February 25, 1957.
James F. Graham and Ernest B. Graham argued the cause and filed a brief for appellants.
Earl W. Allison and J. Ralston Werum argued the cause and filed a brief for appellee.
Mr. Justice Reed
delivered the opinion of the Court.
The question presented by this appeal is whether appellants had a constitutional right under the Due Process Clause of the Fourteenth Amendment to the assistance of their own counsel in giving testimony as witnesses at a proceeding conducted by the Ohio State Fire Marshal to investigate the causes of a fire.
After a fire occurred on the premises of a corporation owned and operated by appellants, the Fire Marshal started an investigation into the causes of the fire and subpoenaed appellants to appear as witnesses. The Fire Marshal refused to permit appellants’ counsel to be present at the proceeding, relying on § 3737.13 of the Ohio Code, which provides that the “investigation may be private” and that he may “exclude from the place where [the] investigation is held all persons other than those required to be present . ...” Appellants declined to be sworn and to testify without the immediate presence of their counsel, who had accompanied them to the hearing. Their refusal was treated as a violation of § 3737.12, which provides that “No witness shall refuse to be sworn or refuse to testify . . . .” Section 3737.99 (A) provides that “Whoever violates section 3737.12 . . . may be summarily punished, by the officer concerned, by . . . commitment to the county jail until such person is willing to comply with the order of such officer.” The Fire Marshal accordingly committed appellants to the county jail until such time as they should be willing to testify. Appellants’ application for a writ of habeas corpus was denied by the Ohio Court of Common Pleas, and this denial was affirmed on appeal by the Ohio Court of Appeals and by the Ohio Supreme Court.
We postponed further consideration of the question of jurisdiction to the hearing on the merits. 351 U. S. 903. The Ohio Supreme Court construed § 3737.13 to authorize the Fire Marshal to exclude appellants’ counsel from the proceeding. Since appellants’ attack is on the constitutionality of that section, we have jurisdiction on appeal. 28 U. S. C. § 1257 (2).
We note at the outset that appellants explicitly disavow making any direct attack on the Fire Marshal’s power of summary punishment under § 3737.99 (A). They challenge not the validity of the procedure by which they were committed to jail, but the constitutional sufficiency of the grounds on which they were so committed. Their sole assertion is that the Fire Marshal’s authority to exclude counsel under § 3737.13 was unconstitutional because they had a right, under the Due Process Clause, to the assistance of their counsel in giving their testimony.
It is clear that a defendant in a state criminal trial has an unqualified right, under the Due Process Clause, to be heard through his own counsel. Chandler v. Fretag, 348 U. S. 3. Prosecution of an individual differs widely from administrative investigation of incidents damaging to the economy or dangerous to the public. The proceeding before the Fire Marshal was not a criminal trial, nor was it an administrative proceeding that would in any way adjudicate appellants’ responsibilities for the fire. It was a proceeding solely to elicit facts relating to the causes and circumstances of the fire. The Fire Marshal’s duty was to “determine whether the fire was the result of carelessness or design,” and to arrest any person against whom there was sufficient evidence on which to base a charge of arson.
The fact that appellants were under a legal duty to speak and that their testimony might provide a basis for criminal charges against them does not mean that they had a constitutional right to the assistance of their counsel. Appellants here are witnesses from whom information was sought as to the cause of the fire. A witness before a grand jury cannot insist, as a matter of constitutional right, on being represented by his counsel, nor can a witness before other investigatory bodies. There is no more reason to allow the presence of counsel before a Fire Marshal trying in the public interest to determine the cause of a fire. Obviously in these situations evidence obtained may possibly lay a witness open to criminal charges. When such charges are made in a criminal proceeding, he then may demand the presence of his counsel for his defense. Until then his protection is the privilege against self-incrimination. U. S. Const., Amend. V; Ohio Const., Art. I, § 10. See Adamson v. California, 332 U. S. 46, 52. This is a privilege available in investigations as well as in prosecutions. See In re Groban, 164 Ohio St. 26, 28, 128 N. E. 2d 106, 108, and 99 Ohio App. 512, 515, 135 N. E. 2d 477, 479-480; McCarthy v. Arndstein, 266 U. S. 34, 40; Adams v. Maryland, 347 U. S. 179. We have no doubt that the privilege is available in Ohio against prosecutions as well as convictions reasonably feared. Cf. Ullmann v. United States, 350 U. S. 422, 431. The mere fact that suspicion may be entertained of such a witness, as appellants believed existed here, though without allegation of facts to support such a belief, does not bar the taking of testimony in a private investigatory proceeding.
It may be that the number of people present in a grand jury proceeding gives greater assurance that improper use will not be made of the witness’ presence. We think, however, that the presumption of fair and orderly conduct by the state officials without coercion or distortion exists until challenged by facts to the contrary. Possibility of improper exercise of opportunity to examine is not in our judgment a sound reason to set aside a State’s procedure for fire prevention. As in similar situations, abuses may be corrected as they arise, for example, by excluding from subsequent prosecutions evidence improperly obtained.
Ohio, like many other States, maintains a division of the state government directed by the Fire Marshal for the prevention of fires and reduction of fire losses. Section 3737.13, which has been in effect since 1900, represents a determination by the Ohio Legislature that investigations conducted in private may be the most effective method of bringing to light facts concerning the origins of fires, and, in the long run, of reducing injuries and losses from fires caused by negligence or by design. We cannot say that this determination is unreasonable. The presence of advisors to witnesses might easily so far encumber an investigatory proceeding as to make it unworkable or unwieldy. And with so weighty a public interest as fire prevention to protect, we cannot hold that the balance has been set in such a way as to be contrary to “fundamental principles of liberty and justice.” Hebert v. Louisiana, 272 U. S. 312, 316. That is the test to measure the validity of a state statute under the Due Process Clause.
Appellants urge, however, that the Fire Marshal’s power to exclude counsel under § 3737.13 must be considered in the light of his power of summary punishment under § 3737.99 (A), and they would have us hold that, so considered, his power to exclude counsel was unconstitutional. We held in In re Oliver, 333 U. S. 257, that a witness before a one-man grand jury, a judge, could not constitutionally be punished summarily for contempt of the grand jury without being allowed to be represented by his counsel. We see no relation between the premise that appellants could not be punished without representation by counsel and the conclusion that they could not be questioned without such representation. Section 3737.13 may contain a constitutional flaw if it should be construed to authorize the exclusion of counsel while the Fire Marshal determines that a witness has violated § 3737.12 and orders the witness committed. The sole assertion of a constitutional violation that appellants relied upon before the Ohio Supreme Court and the only one open on the record here — the authorization in § 3737.13 of the exclusion of counsel while a witness testifies — is not well founded. We hold that appellants had no constitutional right to be assisted by their counsel in giving testimony at the investigatory proceeding conducted by the Fire Marshal, and that § 3737.13, insofar as it authorizes the exclusion of counsel while a witness testifies, is not repugnant to the Due Process Clause of the Fourteenth Amendment.
Affirmed.
Page’s Ohio Rev. Code, 1954, § 3737.13.
Appellants were released on bond and have never in fact been incarcerated.
In re Groban, 99 Ohio App. 512, 135 N. E. 2d 477; 164 Ohio St. 26, 128 N. E. 2d 106.
Page’s Ohio Rev. Code, 1954, §§ 3737.08, 3737.10.
In re Black, 47 F. 2d 542; accord, United States v. Blanton, 77 F. Supp. 812; see United States v. Scully, 225 F. 2d 113, 116.
Bowles v. Baer, 142 F. 2d 787; United States v. Levine, 127 F. Supp. 651. Note, Rights of Witnesses in Administrative Investigations, 54 Harv. L. Rev. 1214, 1216-1217.
Cf. Ullmann v. United States, 350 U. S. 422; Hoffman v. United States, 341 U. S. 479, 486; Smith v. United States, 337 U. S. 137, 150; Hale v. Henkel, 201 U. S. 43, 66-67.
See National Fire Protection Association Handbook of Fire Protection (10th ed. 1948) 41-45; Annual Report of the Division of [Ohio] State Fire Marshal for 1955.
Ohio Laws 1900, Senate Bill No. 51.
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_district
|
F
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Donna MARTIN, Appellant, v. LOCAL 1513 AND DISTRICT 118 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, Appellees.
No. 88-1120.
United States Court of Appeals, Eighth Circuit.
Submitted June 14, 1988.
Decided Oct. 13, 1988.
Thomas Mann, Jr., Des Moines, Iowa, for appellant.
Arthur C. Hederg, Jr., Des Moines, Iowa, for appellees.
Before LAY, Chief Judge and BROWN, Senior Circuit Judge, and HEANEY, Circuit Judge.
The HONORABLE JOHN R. BROWN, Senior Circuit Judge for the United States Court of Appeals for the Fifth Circuit, sitting by designation.
LAY, Chief Judge.
Donna Martin brought a suit against Local 1513 (Union) and District 118 of the International Association of Machinists and Aerospace Workers (IAMAW) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1965). After trial to the district court, judgment was entered in favor of the Union. On appeal, Martin asserts that the trial court’s findings were clearly erroneous. We affirm.
Martin filed this Title VII action against Local 1513, alleging gender discrimination, unfair representation, and retaliation. The trial court found that Martin failed to carry her burden of proof to establish that Local 1513 discriminated against her. On appeal, Martin asserts that the trial court’s factual findings were clearly erroneous under Fed.R.Civ.P. 52(a). We do not agree.
1. GENDER DISCRIMINATION
Martin began working as a machine operator at Tension Envelope (Tension) in 1978. While so employed, she was a member of Local 1513 of the IAMAW. On July 8, 1981, Martin received notification from Tension that the company was unilaterally creating a new job classification, that of “restricted operator,” and that she was being placed in this category effective immediately. A restricted operator was defined by Tension as an operator who had permanent or temporary disabilities. As such, they would be paid less than the traditional operators who were able to run all of the machines. In Martin’s ease, this meant a reduction of forty-five cents per hour.
Within days of this announcement, Local 1513 was actively negotiating with Tension on the structure of this newly-proposed wage scale. Martin herself was a member of the Union’s negotiating committee on this matter. Martin was opposed to the restricted operator classification because she felt it discriminated against women, since the majority of operators at Tension were women. Local 1513, on the other hand, favored the classification because without it persons like Martin would be left “out on the street.”
Martin filed a formal grievance of this wage reduction. Not only did Local 1513 pursue arbitration on Martin’s behalf, the record indicates Martin won her grievance and was awarded back-pay. In April of 1982, after the new collective bargaining agreement was in force, Martin again grieved about her reduced wages as a result of her restricted operator status. Local 1513 took this second grievance to arbitration on behalf of Martin and obtained a ruling that the company did not have a right to unilaterally create the restricted operators classification. Rather, the matter must be subject to negotiation like any other issue of the collective bargaining agreement.
Martin contends that Local 1513 favored the restricted operator classification, and thus “helped to establish [a] discriminatory scheme” at Tension. We do not agree. To begin with, this theory turns on two assumptions. First, that the restricted operator status has been found to be discriminatory; and, second, that Local 1513’s support of the classification was based solely on an intent to discriminate and not in pursuit of a legitimate union interest. Yet the district court specifically found that Martin failed to establish that the restricted operator classification was unlawful or that it was used by the company in a manner that discriminated against women employees. These findings are not clearly erroneous.
Perhaps even more fatal to Martin are the district court’s findings of credibility on this issue. The court found very credible the testimony of Tension’s attorney, Albert L. Harvey, concerning the company’s tough stance with regard to the restricted operator classification and the Union’s efforts to negotiate a more favorable agreement. The court found the testimony of Martin herself and other witnesses, who suggested that the Union was responsible for an atmosphere hostile to women both in the work place and in connection with union business and activities, not to be credible. From a careful review of the record, we cannot conclude that the district court was clearly erroneous in dismissing the gender discrimination claim.
II. UNFAIR REPRESENTATION
The second basis of Martin’s complaint centered on a charge of unfair representation by Local 1513. On appeal, Martin asserts that the district court’s findings were clearly erroneous. The district court found that the Union fairly represented the interests of all of its members and that it did not engage in arbitrary or discriminatory conduct adverse to Martin. Once again there is evidence to support the court’s finding and we cannot find that it is clearly erroneous.
The gravamen of Martin’s complaint relates to the fact that women are allegedly not allowed to be “adjusters” who fix the envelope machines at Tension. Women traditionally are “operators” who run the machines. The adjuster is paid more. It is claimed that Local 1513 agreed with Tension, at the time the collective bargaining agreement was negotiated, to maintain this division of gender classification. As a result, Martin alleges that she did not apply for an adjuster’s job because to do so would have been futile since Tension would not have allowed her to be so employed and, more relevantly, Local 1513 would not have supported her position. She contends she lost income totalling $16,912.16 as a result of the unavailability of promotional opportunities.
Martin also alleges that despite being aware of the problems faced by female members, and that sex discrimination was a .violation of the collective bargaining agreement, Local 1513 did not make a bargaining issue of Tension’s alleged: (a) failure to promote women, (b) use of a verbal test to screen women out of promotions, (c) inclusion of a discriminatory provision on pregnancy in the bargaining agreement, and (d) failure to operate its plant in a way to protect the safety of its employees. She asserts, relying on Romero v. Union Pac. R.R., 615 F.2d 1303 (10th Cir.1980), that “[i]f a union does not take action against discriminatory practices by an employer, it may be held responsible for those practices.” Id. at 1310 (citation omitted). Additionally, “[a] union cannot acquiesce in a company’s prohibited employment discrimination and expect to evade Title VII liability for such discrimination.” Id. at 1311.
We have difficulty with Martin’s “acquiescence” argument in two respects. First, the theory of Romero turns on the fact that “[the] compan[y] [has committed] prohibited employment discrimination.” Id. For whatever reason, the employer, Tension, was not made a party to this lawsuit. Therefore, the company’s employment practices were not before the district court, nor are they at issue in this appeal. The simple fact is that in its current posture, this appeal focuses exclusively on the Union’s activity.
The second difficulty we have with Martin’s “liability by way of acquiescence” argument is that neither this circuit, nor the Supreme Court, has gone that far in holding a union liable under Title VII. In fact, recently in Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987), the Supreme Court specifically chose not to address this issue. Id. at -, 107 S.Ct. at 2623. The Goodman court felt that the district court’s declaration, “that mere Union passivity in the face of employer discrimination renders the Union liable under Title VII,” was a “rather abstract observation.” Id. (emphasis added). While it is true that Goodman affirmed a finding of Title VII liability on the part of the unions, the Supreme Court took great pains to point out that both the district court and the Third Circuit had held that the case against the unions “was much stronger than one of mere acquiescence.” Id. at -, 107 S.Ct. at 2624. On the record before us, we do not have such evidence.
Martin further relies on Farmer v. ARA Services, Inc., 660 F.2d 1096 (6th Cir.1981), which mandates that
[a] union fails to fairly and impartially represent all members of a bargaining unit, and thus breaches its duty of fair representation, when the union’s conduct toward any member becomes arbitrary, discriminatory or in bad faith, [citations omitted]
******
[A] union’s breach of the duty of fair representation also subjects it to liability under Title VII if the breach can be shown to be because of the complainant’s race, color, religion, sex, or national origin.
Id. at 1103-04. While this court does not quarrel with the holding of Farmer, it is axiomatic that for Martin to succeed on this theory there must first be a finding that Local 1513 breached its duty of fair representation. On the record before us, such a contention is without merit.
The district court found that Local 1513 fairly represented all of its members and that it did not engage in arbitrary or discriminatory conduct towards Martin. These findings put Local 1513 in compliance with the mandate of Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), on the duty of fair representation.
As discussed earlier, the grievances Martin brought were handled properly by Local 1513. Although Martin sets out a list of some thirty alleged unfair representation violations involving other women members, she has failed to show that the Union unfairly represented her, personally, in any way. The mishandling of grievances of other members of Local 1513, if they occurred, do not establish that the Union unfairly represented her. On the basis of the record as a whole, we feel the district court’s dismissal of the unfair representation claim is not clearly erroneous.
III. RETALIATION
Martin’s final claim was that because she filed a complaint against Local 1513 with the International Union and because she filed a civil rights complaint with the Iowa Civil Rights Commission against the Union, Local 1513 retaliated by failing to adequately represent her and other women. The district court rejected this claim.
To establish a prima facie case of discriminatory retaliation, Martin must establish: “(1) that [she] filed a charge of unlawful discrimination, (2) that [Local 1513] took adverse action against [her], and (3) that the adverse action was linked to the filing of the charge of unlawful discrimination.” Kellner v. General Refractories Co., 631 F.Supp. 939, 944 (N.D.Ind.1986). See also Gunther v. County of Washington, 623 F.2d 1303 (9th Cir.1979), aff'd, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). Although Martin meets the first element of Kellner, the district court found that Local 1513 did not unlawfully retaliate against her for anything she did. We cannot say this finding is clearly erroneous. As such, Martin cannot prove the second and third elements needed under Kellner to show retaliation.
IV. CONCLUSION
We conclude that the trial court’s findings of fact and conclusions of law were not clearly erroneous. The dismissal of Martin’s complaint is affirmed.
. The Honorable Charles R. Wolle, United States District Judge for the Southern District of Iowa.
. It must be noted from the onset that Martin’s employer, Tension Envelope, is not a named party defendant in this lawsuit. Rather, Martin’s complaint was limited to the local and the district units of the IAMAW.
. 42 U.S.C. § 2000e et seq. states, in part:
§ 2000e-2. Unlawful employment practices (c) It shall be an unlawful employment practice for a labor organization—
(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin;
(2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual’s race, color, religion, sex, or national origin; or
(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.
. Section 2000e-3. Other unlawful employment practices
(a) It shall be an unlawful employment practice for * * * a labor organization to discriminate against any member thereof * * * because he has opposed any practice made an unlawful employment practice by this sub-chapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
. Martin was fully experienced in the grievance procedure. The Union represented her on all grievances she filed. In addition to the grievance the Union pursued on the restricted operator classification, Martin pursued at least two other grievances against the company by Union representation.
In August, 1979, Martin was diagnosed as having tendonitis of the elbow and her doctor recommended that, although she could return to work, she was restricted from operating the “527 machine.” Despite this recommendation, Martin was requested by Tension to operate the 527 machine the following November 14. Martin refused and went home. Tension treated this act as a voluntary resignation and would not permit her to return to work.
Martin filed a grievance of this job dismissal with Local 1513. On January 10, 1980, the grievance was voluntarily settled and Tension allowed Martin to return to work without any loss of seniority. This return was conditioned on the fact that Martin would not be required to operate the 527 machine in the future. However, because she could not fulfill all of the duties of a regular operator (e.g., she could not operate all of the machines), in January and March of 1981 Tension denied her wage progressions. Martin grieved these denials. Local 1513 processed these grievances in a timely fashion. They were approved and ready for arbitration when Martin again voluntarily settled with Tension on June 29, 1981.
. In addition to the above claim of discrimination, Martin cites two examples of alleged sexual harassment directed towards her personally. However, Martin acknowledges that no grievances were filed on these alleged "sexual overtures" made by fellow union members nor were they brought to the attention of management of Tension.
Martin brought this suit individually and not as a class action. Therefore, although the district court allowed in evidence all acts towards Martin’s fellow union members, this evidence was relevant only to establishing a pattern for discrimination or the intent to do same on the part of Local 1513.
. Martin concedes that Tension dropped job classifications of "male” and “female" from the collective bargaining agreement after Title VII became law. Despite this fact, Martin contends that Tension continued to practice a de facto form of job channelling and she urges that the evidence shows Local 1513 was aware of this condition.
. According to her claim:
During the twenty-seven year period between 1960 and 1987, only one woman was permitted to work as an "adjuster," and she was demoted from that position before the expiration of the 90-day probationary period. Women who applied for the position of “adjuster” were required to take a verbal test which was subjective in nature, and the oral answers given by female applicants were interpreted by Tension's managers so women routinely failed this test. Women employees of Tension came to understand that "operator” jobs were considered women’s work, and “adjuster” jobs were considered men’s work. Some women who applied to be "adjusters” were told that they were not sufficiently mechanically inclined to be “adjusters” as they were brought up to do household work. Women came to understand that "adjuster” jobs were reserved for men, and because of that prevailing understanding, few women applied to be "adjusters.”
Appellant’s brief at 2-3.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_typeiss
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D
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What follows is an opinion from a United States Court of Appeals.
Your task is to 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.
FROMBERG, INC., Appellant, v. GROSS MANUFACTURING COMPANY, Inc., Appellee.
No. 18539.
United States Court of Appeals Ninth Circuit.
Feb. 26, 1964.
Nilsson, Robbins & Anderson, and B. G. Nilsson, Los Angeles, Cal., for appellant.
Christie, Parker & Hale, C. Russell Hale, and Harold L. Jackson, Pasadena, Cal., for appellee.
Before HAMLIN, BROWNING and DUNIWAY, Circuit Judges.
DUNIWAY, Circuit Judge.
Appellant is the owner of United States Letters Patent No. 2,828,791 and brought this action charging infringement of the patent. The trial court granted the appellee’s motion for summary judgment. We are affirming.
The patent is a combination patent involving two unpatentable elements. The combination is a simple, clever, useful, and highly successful device, the purpose of which is to enable a tire repairman to repair a hole in a tubeless automobile tire without removing the tire from the rim. The first of the two unpatentable elements which form the combination is an elongated metal tube of small diameter, sharpened at one end so that it can be forced through the tire and having a flared opening at the other end for the purpose of facilitating insertion into the tube of an elongated rubber plug which is compressed when inside the tube. The plug is the other element. The patented combination is used in connection with an “applicator” on which appellant also holds a patent No. 2,828,657. The applicator is used to hold the flared end of the tube containing the rubber plug while the tube is being forced through the tire and then simultaneously to eject the rubber plug from the tube and withdraw the tube from the tire so that the plug remains in the hole. As the inventor stated in the patent in suit: “The object of this invention is, therefore, to provide means for installing a stem of resilient material in an opening through a motor vehicle tire.”
The appellee manufactures rubber plugs of a size and shape suitable to be inserted in the metal tubes which are one of the two elements in the Fromberg combination. Appellee’s plugs are specifically designed for this use. In marketing them, appellee purchases one of appellant’s patented combinations of tube and plug, and places it, together with a supply of appellee’s rubber plugs and a “cartridge holder” produced by appellee, in a cardboard package. It then sells the package as a kit labeled “Rubber Rivet Reloads for use with Fromberg Cartridges.” It plainly shows that the enclosed Fromberg cartridge is appellant’s and that the other items are appellee’s, and there is no claim that appellee is deceiving purchasers as to the source of the plugs sold by appellee. The kit contains an instruction sheet that shows the buyer how, with the use of the cartridge holder, ■ he can insert appellee’s rubber plug in the empty From-berg tube, thus enabling him to reuse the tube. Appellee does not manufacture or sell tubes; it uses and sells only appellant’s tubes. Appellant, on the other hand, does not separately market its tubes or plugs, but sells only the combination.
The validity of appellant’s patent is admitted by appellee on this appeal, although it was attacked in its answer. We assume, but do not decide, that the patent is valid.
The facts that we have stated appear in affidavits submitted by appellee. These affidavits were accompanied by a copy of the patent in suit and of its “file wrapper” and by physical exhibits consisting of appellant’s cartridges in four different sizes, each containing one of appellant’s rubber plugs, samples of appellee’s rubber plugs, of its cartridge holder, and of the carton in which its kits are sold, and a sample package put out by appellant and containing 25 of its cartridges. Also attached to one of appellee’s affidavits is a copy of an advertisement published by appellee in which it advertises its rubber plugs as reloads for Fromberg’s cartridges and shows by means of illustrations how to reload them. In that affidavit, which was made by appellee’s president, it is stated: “Each of the Fromberg cartridge shells (Exs. A, B, C and D) are capable of inserting many of the expendable rubber plugs into tires.”
In response, appellant filed an affidavit by one of its counsel in which it is stated that the Fromberg plug “requires the use of an applicator for placement in a tire and is not self-dispensing.” A copy of the patent No. 2,828,657 covering the applicator is attached to this affidavit. There is also an affidavit of the executive vice president of appellant in which it is stated:
“3. That in the use of a From-berg rivet, the rubber stem is placed in a tire puncture by a repair gun, and the metal-shell part of the rivet does not, and cannot dispense the stem into a tire.
“4. That spent shells from From-berg rivets have no practical value, because the shells can be manufactured for less cost than they can be reclaimed.
“5. That the shell portion of a Fromberg rivet is designed for a single use and to reclaim such shells and refill them for reliable operation is not economically feasible.”
Appellant states the truism that it is improper to grant a motion for summary judgment under Rule 56, F.R.Civ.Proc. unless the affidavits and other evidence produced on the motion “show that there is no genuine issue as to any material fact.” (Rule 56(c)). It asserts that the affidavit last quoted raises such genuine issue. We think not. There is no contention by appellee that appellant’s loaded cartridge can be used without the applicator. Appellant’s affidavit does not contradict appellee’s statement that appellant’s cartridges are capable of reuse. It merely asserts that such reuse is not economically feasible, and that they can be manufactured for less cost than they can be reclaimed. If this be true, and we assume for the purpose of this appeal that it is, then appellee is not likely to stay in business very long because purchasers of the Fromberg cartridge will discover that it does not pay to reload them with appellee’s plugs. However, f or reasons hereafter stated, we think that the economic feasibility of reloading the cartridges is immaterial, and that there is therefore no “genuine issue as to any material fact” in this case.
It is well settled that in certain cases a motion for summary judgment is a proper way in which to dispose of an action for patent infringement. See Park-In-Theatres, Inc. v. Perkins, 9 Cir., 1951, 190 F.2d 137; Steigleder v. Eberhard Faber Pencil Co., 1 Cir., 1949, 176 F.2d 604; Vermont Structural Slate Co. v. Tatko Bros. Slate Co., 2 Cir., 1956, 233 F.2d 9.
Appellant, however, says that the court made no express finding that there was no genuine issue as to any material fact and invokes the “technical rule” that absent such a finding the judgment must be reversed. Apparently, the notion that there is such a technical rule started with an impatient statement of Judge Fee, citing no authority, in New and Used Auto Sales v. Hansen, 9 Cir., 1957, 245 F.2d 951, a case in which this court found that there were genuine issues to be tried. There is similar, but somewhat weaker, language by Judge Mathews in Sequoia Union High School Dist. v. United States, 9 Cir., 1957, 245 F.2d 227. These dicta were repeated in the form of an alternative holding in Neff Instruments Corp. v. Cohu Electronics, Inc., 9 Cir., 1959, 269 F.2d 668, 674. Yet in each case the court was at pains to show that there were, in fact, genuine issues of material fact to be tried. How much repetition of dicta is required to make a holding, we need not here decide.
The court is not required to make any finding in granting a motion for summary judgment. Lindsey v. Leavy, 9 Cir., 1945, 149 F.2d 899, 902. Such findings, however, are sometimes made, and when made they are helpful to the appellate court. In this case the court wrote an opinion and also made formal findings of fact and conclusions of law. The latter do not contain the ritual statement that there is no genuine issue as to any material fact. The opinion states: “Defendant [appellee] urges that all the facts hereinabove stated are undisputed and that they establish non-infringement. With this conclusion we agree.” We think that, unless litigation is to be reduced to mere verbal ritualism, a prospect that we do not regard with any relish, this statement is equivalent to a statement that there is no genuine issue as to any material fact.
Appellant asserts that what appellee does is both direct and contributory infringement. These are defined in 35 U.S.C. § 271 as follows:
“(a) Except as otherwise provided in this title, whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.
“(b) Whoever actively induces infringement of a patent shall be liable as an infringer.
“(c) Whoever sells a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.”
The validity of appellant’s assertion depends upon whether what appellee does is a direct infringement. “In a word, if there is no infringement of a patent, there can be no contributory infringer.” (Mercoid Corp. v. Mid-Continent Co., 1944, 320 U.S. 661, 677, 64 S.Ct. 268, 276, 88 L.Ed. 376 (concurring opinion), quoted and followed in Aro Mfg. Co. v. Convertible Top Replacement Co., 1961, 365 U.S. 336, 341, 81 S.Ct. 599, 5 L.Ed.2d 592). The Aro decision holds that § 271(c) does not change this rule, becoming operative, by its own terms, only where the article involved is for use in an infringement of the patent. Is there direct infringement? We think not.
In the January Term in 1850 there came before the Supreme Court the case of Wilson v. Simpson, 50 U.S. (9 How.) 108 [109], 13 L.Ed. 66. The case involved a patented planing machine. According to the opinion, the inventor of the machine had so arranged certain cutter-knives as a part of its combination that the machine could not be continued in use without a succession of knives at short intervals. The knives were unpatented. It was held that the patent was not infringed by a replacement of the knives. The Court said:
“Nothing is gained against our conclusion by its being said that the combination is the thing patented, and that, when its intended result cannot be produced from the deficiency of a part of it, the invention in the particular machine is extinct. It is not so. Consisting of parts, its action is only suspended by the want of one of them, and its restoration reproduces the same result only, without the machine having been made anew. Of course, when we speak of the right to restore a part of a deficient combination, we mean the part of one entirely original, and not of any other patented thing which has been introduced into it, to aid its intended performance.” (Pp. 123-124 of 50 U.S. [9 How.], 13 L.Ed. 66)
This decision has been followed ever since.
Morgan Envelope Co. v. Albany Paper Co., 1894, 152 U.S. 425, 14 S.Ct. 627, 38 L.Ed. 500, involved the right of the defendant to sell, to purchasers of the plaintiff’s patented contraption for dispensing toilet paper, rolls of toilet paper, unpatented and unpatentable, designed to be used in the plaintiff’s dispenser. The language of the opinion is particularly pertinent here:
“But without expressing an opinion upon this point, we think the facts of this case fail to sustain the charge of infringement. Defendants neither made, sold, nor used the mechanism invented by Hicks to serve out the toilet paper, except as they purchased it of the patentee, and the only acts proven against them were in selling oval rolls of paper of their own manufacture, with fixtures manufactured and sold by the plaintiff, in combination with its [the plaintiff’s] paper to persons other than the defendants, the fixtures having been obtained by defendants from the orginal purchasers of the patented combination; and also of selling oval rolls of paper of defendant’s own manufacture to ■ persons who had previously purchased fixtures and paper from the plaintiff, with the knowledge and intention that the paper so sold was to be used in connection with the plaintiff’s fixtures.” (P. 431 of 152 U.S., p. 630 of 14 S.Ct., 38 L.Ed. 500)
* -X- * * * -»
“The real question in this case is, whether, conceding the combination of the oval roll with the fixture to be a valid combination, the sale of one element of such combination, with the intent that it shall be used with the other element, is an infringement. We are of opinion that it is not. There are doubtless many cases to the effect that the manufacture and sale of a single element of a combination, with intent that it shall be united to the other elements, and so complete the combination, is an infringement. Saxe v. Hammond, Holmes, 456; Wallace v. Holmes, 9 Blatchford, 65; Barnes v. Straus, 9 Blatchford, 553; Schneider v. Pountney, 21 Fed.Rep. 399. But we think these cases have no application to one where the element made by the alleged infringer is an article of manufacture perishable in its nature, which it is the object of the mechanism to deliver, and which must be renewed periodically, whenever the device is put to use.” (Pp. 432-433 of 152 U.S., p. 630 of 14 S.Ct., 38 L.Ed. 500)
In Heyer v. Duplicator Mfg. Co., 1923, 263 U.S. 100, 44 S.Ct. 31, 68 L.Ed. 189, the Court held, in reliance upon the Wilson case, that the purchasers of a patented duplicating machine, one element of which is a band of gelatin to which is to be transferred the print to be multiplied, had a right to replace the gelatin bands from any source that they chose. As the Court said: “If they have that right the defendant in selling to them does no wrong.”
The latest decision of the Supreme Court is Aro Mfg. Co. v. Convertible Top Replacement Co., supra, 1961, 365 U.S. 336, 81 S.Ct. 599, 5 L.Ed.2d 592. Convertible had a combination patent on a folding top for convertible models of automobiles. The fabric top normally wore out long before the rest of the mechanism. Aro manufactured and sold replacement tops. The Court said:
“The principal, and we think the determinative, question presented here is whether the owner of a combination patent, comprised entirely of unpatented elements, has a patent monopoly on the manufacture, sale or use of the several unpatented components of the patented combination.” (Pp. 338-339 of 365 U.S., p. 800 of 81 S.Ct., 5 L.Ed.2d 592)
* * * * * *
“Since the patentees never claimed the fabrie or its shape as their invention, and the claims made in the patent are the sole measure of the grant, the fabric is no more than an unpatented element of the combination which was claimed as the invention, and the patent did not confer a monopoly over the fabric or its shape.” (Pp. 339-340 of 365 U.S., p. 601 of 81 S.Ct., 5 L.Ed.2d 592)
* * * * * *
“It follows that petitioners’ manufacture and sale of the fabric is not a direct infringement under 35 U.S.C. § 271(a) * *
The Court then held that there can be no contributory infringement under § 271(c) unless, had the purchaser of the product done the same thing, it would be a direct infringement.
“The determinative question, therefore, comes down to whether the car owner would infringe the combination patent by replacing the worn-out fabric element of the patented convertible top on his car, or even more specifically, whether such a replacement by the car owner is infringing ‘reconstruction’ or permissible ‘repair’.
“This Court’s decisions specifically dealing with whether the replacement of an unpatented part, in a patented combination, that has worn out, been broken or otherwise spent, is permissible ‘repair’ or infringing ‘reconstruction,’ have steadfastly refused to extend the patent monopoly beyond the terms of the grant.” (P. 342 of 365 U.S., p. 602 of 81 S.Ct., 5 L.Ed.2d 592)
* -X- -X- * -X- *
“ * * * For if anything is settled in the patent law, it is that the combination patent covers only the totality of the elements in the claim and that no element, separately viewed, is within the grant.” (P. 344 of 365 U.S., p. 604 of 81 S.Ct., 5 L.Ed.2d 592)
******
“No element, not itself separately patented, that constitutes one of the elements of a combination patent is entitled to patent monopoly, however essential it may be to the patented combination and no matter how costly or difficult replacement may be.
* * * * * *
“We hold that maintenance of the ‘use of the whole’ of the patented combination through replacement of a spent, unpatented element does not constitute reconstruction.” (Pp. 345-346 of 365 U.S., p. 604 of 81 S.Ct., 5 L.Ed.2d 592)
(Citations and footnotes omitted)
The Court cited and relied, inter alia, upon Wilson, Morgan Envelope, and Hey-er. We do not see how it can be maintained, under the Aro decision, that the intent or understanding of the patentee or licensee, or the “essence” or “heart” of the combination, is any longer controlling, at least in a case such as this, where one element of the combination is necessarily removed and finally used, while the other remains and is capable of further use.
We think that the principles of the foregoing cases are applicable here. They are reinforced by the cases that hold that a patentee cannot, by a restricted license, require a purchaser of the patented article, which is designed to use certain products that are not themselves patented, to use only such of those products as are produced or sold by the patentee. (See Motion Picture Patents Co. v. Universal Film Co., 1917, 243 U.S. 502, 37 S.Ct. 416, 61 L.Ed. 871; United States v. Univis Lens Co., 1942, 316 U.S. 241, 62 S.Ct. 1088, 86 L.Ed. 1408; Mercoid Corp. v. Mid-Continent Co., 1944, 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376; Mercoid Corp. v. Minneapolis-Honeywell Co., 1944, 320 U.S. 680, 64 S.Ct. 278, 88 L.Ed. 396).
In the light of the foregoing authorities, we think that appellant’s contention that it has a right to prevent appellee from selling the plugs for use in its cartridges because, as it claims, such use is not economically feasible, is immaterial and does not raise any triable issue in this case. We think too that the Cotton-Tie case (Cotton-Tie Co. v. Simmons, 1892, 106 U.S. (16 Otto) 89, 1 S.Ct. 52, 27 L.Ed. 79), if it still has validity, is of no help to appellant. There the defendant reconstructed, from the patentee’s materials, the patentee’s combination, and this was held to be an infringement. Later cases have distinguished the case, relying in part upon the fact that the patentee in that case marked its product “licensed to use once only.” In the light of subsequent decisions, we doubt if such a restrictive license would be effective today. We need not decide whether later decisions have, by implication, overruled the Cotton-Tie case; at the least they have given it a very narrow effect.
From what we, have said, it must be apparent that we do not agree with the decision of the Court of Appeals for the Fifth Circuit in Fromberg, Inc. v. Thornhill, 1963, 315 F.2d 407. In that case, Judge Brown finds inducement of infringement (§ 271(b), supra) of the Fromberg patent in conduct similar to that of appellee. He says: “The principal point of this inquiry is whether,, when sold by the Patentee, it is reasonably contemplated that the device will be repeatedly used. * * * Designed,, manufactured and sold as a unit, it is', likewise used as a unit. Once the rubber plug is extruded into the tire, that part cannot ordinarily be used again. Nor is it expected that the metal tube will be. It has a single-shot function and purpose for a one-time use.” (Pp. 412-413 of 315 F.2d) He concludes that the reloading of Fromberg cartridges is infringement, because it produces the identical combination covered by the patent, relying primarily upon the Cotton-Tie case. ]
We must respectfully disagree. The identical combination was also produced in Aro. If by “expected” Judge Brown; refers to the patentee’s desire or hope, we might agree that such is his expectation, but we must add that neither the desire nor the hope of the patentee in this regard either is or ought to be material, much less controlling. No one should be required to probe the mind of a patentee in order to know whether he is infringing. Viewing the matter objectively, that is, looking at the patent and the patented combination without adding an assumption as to what may be in the mind of the patentee, we find nothing to indicate such an expectation. There can be no doubt that the rubber plug has a “single-shot function and purpose for a one-time use.” It is to be removed from the combination and left permanently in the tire. Not so with the tube. It is intended to be, and is, removed from the tire, and is then capable of being reused. Where, then, as to it, is the “single-shot function” or “one-time-use?” Judge Brown does not tell us, and we cannot find either of them.
Affirmed.
. There are several decisions of Circuit Courts that are in accord. See, e. g., Micromatic Hone Corporation v. Mid-West Abrasive Co., 6 Cir., 1949, 177 F.2d 934; Westinghouse Electric & Mfg. Co. v. Hesser, 6 Cir., 1942, 131 F.2d 406.
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_usc2
|
28
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 28. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
ALBATROSS TANKER CORPORATION, as Owner of Steamship ERNA ELIZABETH, Libelant-Appellee, v. SS. AMOCO DELAWARE and American Oil Company, Respondents-Appellants. AMERICAN OIL COMPANY, as Owner of the SS. AMOCO DELAWARE, Libelant-Appellant, v. SS. ERNA ELIZABETH, her engines, etc., and Albatross Tanker Corporation, Respondents-Appellees.
Nos. 508, 509, Dockets 33035, 33036.
United States Court of Appeals Second Circuit.
By Motion Submitted Sept. 27, 1969.
Decided Nov. 3, 1969.
See also 2 Cir., 415 F.2d 692.
Burlingham, Underwood, Wright, White & Lord, New York City. (Eugene Underwood, Kenneth H. Yolk, and Frank L. Wiswall, Jr., New York City), for appellees for the motion.
Before MOORE, FRIENDLY, and HAYS, Circuit Judges.
PER CURIAM:
Appellees move for an order allowing their printing costs in full as taxable under Federal Rules of Appellate Procedure, rule 39 (c). The Clerk of the Court, believing that 28 U.S.C. § 1923(c) still applies, would limit the costs for the printing of the brief as provided in said section to $75 whereas the amount actually paid for printing of appellees’ brief is $889.09. Under the new Federal Rules of Appellate Procedure, effective July 1, 1968, the subject of costs is covered by Rule 39. Rule 39(c) provides as taxable cost:
“The cost of printing or otherwise producing necessary copies of briefs, appendices, or copies of records *
The Enabling Act (28 U.S.C. § 2072) which empowered the Supreme Court to promulgate the new Rules provides:
“All laws in conflict with such rules shall be of no further force and effect after such rules [take] effect.”
It would thus appear that 28 U.S.C. § 1923(c) has been superseded by Rule 39(c). Therefore, Section 1923 no longer applies and we must look to Rule 39(c) for the awarding of costs.
Appellees’ bill of costs is allowed in full as authorized by Rule 39.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 28. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_circuit
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
KINGSPORT PUBLISHING CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 18048.
United States Court of Appeals Sixth Circuit.
Sept. 4, 1968.
Edwin O. Norris, Kingsport, Tenn., (David W. Zugschwerdt, F. Allan Kelly, Kingsport, Tenn., on the brief), for petitioner. Hunter, Smith, Davis, Norris, Waddey & Treadway, Kingsport, Tenn., of counsel.'
Nancy M. Sherman, N. L. R. B., Washington, D. C., (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel-Mallet-Prevost, Asst. Gen. Counsel, on the brief), for respondent.
Before CELEBREZZE, PECK and McCREE, Circuit Judges.
PECK, Circuit Judge.
In this action Kingsport Publishing Company, hereinafter the “Company,” petitioned for review, and the National Labor Relations Board cross-petitioned for enforcement of an order of the Board dated June 21, 1967 (165 NLRB No. 116), which held the Company to be in violation of Section 8(a) (5) and (1) of the National Labor Relations Act, as amended (29 U.S.C. § 158(a) (5) and (1) ), upon a charge of unilaterally altering a condition of employment during the course of negotiations with the Union for a new collective bargaining agreement.
The Company and the Union executed a collective bargaining agreement on November 1, 1962, which extended through October 31, 1964. On August 25, 1964, the Union notified the Company by letter that “on October 31 any agreement — written, oral or implied — or any conditions of employment or other understanding now in effect between the [Company] and [the Union] will terminate,” and offered to meet with the Company to negotiate an agreement with respect to wages, hours and other terms and conditions of employment. A number of bargaining sessions were held between September, 1964, and November, 1966, at which time no agreement had been consummated.
On June 22, 1965, approximately eight months after the expiration of the 1962 contract, employee Ivil Lytz was discharged by the Company for refusal to carry out a foreman’s instructions and for deliberately ignoring posted instructions regarding holiday shifts. (It is not contended that this discharge was discriminatory or that it constituted an independent violation under the Act.) The Union then took the position that the Company should reinstate Lytz and process his discharge in accordance with the grievance procedure contained in the contract which terminated in October, 1964. The Company refused the request to so process the grievance, and the Union thereafter rejected the Company’s offer to discuss the discharge during contract negotiations. The Union subsequently filed the unfair labor practice charges upon which the complaint underlying the order on review was based.
It is the Board’s position that a grievance procedure constitutes a mandatory subject for collective bargaining (N.L.R.B. v. United Nuclear Corp., 381 F.2d 972 (10th Cir. 1967); N.L.R.B. v. Celotex Corp., 364 F.2d 552 (5th Cir.), cert. denied, 385 U.S. 987, 87 S.Ct. 601, 17 L.Ed.2d 450 (1966); N.L.R.B. v. Century Cement Mfg. Co., Inc., 208 F.2d 84 (2d Cir. 1953) ), and that the Company violated the Act by unilaterally altering, or stated more precisely, by abandoning the grievance procedure provided in the expired 1962 contract. See N.L.R.B. v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962); Fibreboard Paper Products Co. v. N.L.R.B., 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964).
It is clear that no bad faith motive or anti-union sentiment is imputable to the Company by any of its actions, as evidenced by the non-discriminatory nature of the discharge and the Company’s offer to discuss the grievance in question at bargaining negotiations or to process it in accordance with the new grievance procedure tentatively agreed upon once the new contract was executed. Moreover, the Company did not attempt to substitute a new grievance procedure in lieu of the one contained in the expired contract during the course of negotiations. Compare Industrial Union of Marine & Shipbuilding Wkrs. v. N.L.R.B., 320 F.2d 615, at 620 (3rd Cir. 1963), cert. denied, Bethlehem Steel Co. v. N.L.R.B., 375 U.S. 984, 84 S.Ct. 516, 11 L.Ed.2d 472 (1964). The unfair labor practice charge in this case rests solely upon the Company’s refusal to process the grievance relating to Lytz’s discharge in accordance with the provisions of the 1962 collective bargaining contract.
The grievance procedure contained in the 1962 contract between the Company and the Union provided for binding arbitration as the final step in the settlement of any dispute. The Board, by adopting the Trial Examiner’s findings and conclusions, held that “it would, of course, seem totally inconsistent to hold that a grievance procedure would survive a contract but the arbitration clause, the final and binding part of that procedure, would not.” While congressional policy favors the settlement of labor disputes by the arbitral process rather than by economic warfare (See Section 203(d) of the Labor Management Relations Act, 29 U.S.C. § 173(d); United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrier & Gulf Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)), arbitration nevertheless rests upon a contractual basis. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Amalgamated Clothing Workers v. Ironall Factories Co., Inc., 386 F.2d 586 (6th Cir. 1967). . Thus, although the Board by its order would require the Company to process the grievance in dispute in accordance with the provisions of the 1962 collective bargaining contract, the Board does not refute the Company’s contention that neither party to the contract could successfully have brought suit under Section 801 of the Labor Management Relations Act to compel arbitration. Cf. Procter & Gamble Independent Union v. Procter & Gamble Mfg. Co., 312 F.2d 181 (2d Cir. 1962), cert. denied, 374 U.S. 830, 83 S.Ct. 1872, 10 L.Ed.2d 1053 (1963).
The Company argues that the Union, by its letter of August 25, 1964, fully terminated all working conditions and other understandings under the contract then in effect. The Board, however, found that the letter “was no more than required by Section 8(d) of the Act.” While we disagree with the Board’s conclusion, since it seems quite clear that the language used went far beyond anything required by Section 8(d), we find it unnecessary to decide whether the Union’s letter, standing alone, constituted a “clear and unmistakable” waiver (Dura Corp. v. N.L.R.B., 380 F.2d 970 (6th Cir. 1967) ) of the alleged statutory right to bargain about any change regarding a condition of employment.
There is little evidence in the record establishing the extent to which the formal grievance procedure was actually employed by the parties during the effective term of the 1962 contract, and what evidence there is shows that the grievance arising out of Lytz’s discharge was to be the first to be formally processed “outside of normal negotiations.” As stated in N.L.R.B. v. Frontier Homes Corp., 371 F.2d 974, 980-981 (8th Cir. 1967):
“An expired contract in the Labor-Management field must be viewed in light of its effect upon the past operation of the plant and the entire industrial pattern which has been established, in part, by it, together with the customs, practices, and traditions of the. industry and the Company. Expired contract rights affecting mandatory bargaining issues, therefore, have no efficacy unless the rights have become a part of the established operational pattern and thus become a part of the status quo of the entire plant operation.”
Because of the absence of evidence of prior use of the grievance procedure, it certainly cannot be said that the grievance machinery was part of the “established operational pattern” at the Company’s plant, or that the Company unlawfully upset the status quo by resisting attempts to settle the grievance by means other than direct negotiations with the Union. Cf. N.L.R.B. v. Katz, supra at 746, 82 S.Ct. 1107.
In accordance with the foregoing, it is here determined that the Board’s conclusion that the Company unlawfully refused to bargain with the Union in violation of Section 8(a) (5) and (1) of the Act was unwarranted. Accordingly, enforcement of the Board’s order requiring the Company to reinstate Lytz with back pay and to process the grievance in accordance with the expired 1962 contract should be denied.
Enforcement denied.
Kingsport Typographical Union No. 940, an affiliate of the International Typographical Union.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MAGENTON v. UNITED STATES.
No. 9971.
Circuit Court of Appeals, Eighth Circuit.
Jan. 31, 1935.
E. B. Adams and C. A. Wilson, both of Hot Springs, S. D., for appellant.
Armistead L. Boothe, Atty., Department of Justice, of Washington, D. C. (George Philip, U. S. Atty., and Frank Wickhem, Asst. U. S. Atty., both of Sioux Falls, S. D., and John T. Heffron, Asst. U. S. Atty., of Deadwood, S. D., on the brief), for the United States.
Before GARDNER, SANBORN, and VAN VALKENBURGH, Circuit Judges.
SANBORN, Circuit Judge.
From a judgment entered upon a directed verdict for the defendant in an action upon a policy of war risk insurance, this appeal is taken. The insured was discharged from the service on February 15, 1919. He paid no premiums on his policy thereafter. It lapsed March 31, 1919. He brought this action in August, 1932, claiming that, prior to the date of his discharge and while he was in the service, he was “afflicted” with a compound fracture of the right elbow, a paralytic stroke, bronchitis, pneumonia, tonsilitis, and “general weakness and disability,” which caused total and permanent disability. This the government denied.
The right of the insured to recover under his expired policy depended upon his condition while his policy was in force. Evidence of his condition subsequent to the lapse of the policy was only admissible -for the purpose of showing the nature and extent of the disability existing prior to lapse. Eggen v. United States (C. C. A. 8) 58 F.(2d) 616, 619; Proechel v. United States (C. C. A. 8) 59 F.(2d) 648, 652; Thompson v. United States (C. C. A. 8) 65 F.(2d) 897, 898; United States v. Green (C. C. A. 8) 69 F.(2d) 921; Cockrell v. United States (C. C. A. 8) 74 F.(2d) 151, opinion filed November 17, 1934; Lumbra v. United States, 290 U. S. 551, 54 S. Ct. 272, 78 L. Ed. 492; United States v. Spaulding, 55 S. Ct. 273, 79 L. Ed. — , opinion filed January 7, 1935.
The appellant contends that there was some substantial evidence that, while his policy was in force, he became totally and permanently disabled. It is unnecessary to set forth the evidence in detail. His own testimony as to the history of the nature and extent of his injuries while in the service is, briefly, as follows:
“I was injured at Alsace Lorain while in service. I received a compound fracture of the right elbow and had spinal trouble. At the time we were on our way to your destination, Alsace Lorain, we stopped in a small village and while there a squad of us were put on detail duty work, hauling garbage. The driver of the truck was very careless. While we were loading the truck some of the stuff slipped backwards and knocked three of us fellows off and I fell backwards off the truck onto some cement behind the truck. I fell on my right shoulder, and caused a fracture of my right arm. I was unconscious and they sent me to a hospital. When I came to, I tried to move my left side — to move my left leg over to my right one, and I could not do so. Neither could I move my right arm for some reason unknown to me. Some called it a paraletic stroke. I was in the hospital approximately thirty-nine days. While there a surgeon massaged my right arm, and put a stretcher on it and tried to pull it into place in order to join the bones. This he failed to do.
“After my discharge from this hospital, I was sent to a place called Blois in France. I was there approximately three months at Blois Hospital No. 13. I did not resume my previous work in the Army. From there I was transferred later on to Brest.
“Previous to my enlistment in the Army, I had broken my right arm, but there remained no noticeable deformity from this break. At the time of this break the arm had been set right. In the service it was broken at the elbow and my shoulder blade was also fractured, I think. * * *
“After the accident in France I was moved to another camp and then I went to America. I was recommended for S. C. D. on account of my condition in France. They failed however to give me the S. C. D. in the rush at that time. I was discharged at Camp Dodge, Iowa, and right at that time was in the same condition and worse — practically in the same condition as when injured. I was having trouble with my left side; trouble showing all through my body, spine and both arms. At that time I was slightly paralized in the right arm. I could not grip anything and hold onto it under any condition, and it pained me térribly. This was when I was discharged from the service.”
The appellant, who had a sixth grade education, had been a farm hand prior to the war. After discharge, he went to his “uncle’s place.” He stayed with his uncle for about three months, and then went to the farm of a man named Bakke, near Walcott, N. D., where he remained for approximately six months, working as a farm hand. He says that he did little work, and that what little he did was done with his left hand; that he could not “hang onto things” and could only hold “loose-mouthed horses”; that, when he was driving teams hitched to farm implements, he would sometimes fall off the implements and have a runaway; that he could not hang onto the reins for lack of grip in his hands. He says that, for the six months that he worked for Bakke, he was paid a little less than a hundred dollars.
He applied for and received compensation almost immediately after his discharge. The amount of compensation was $30 a month, and he was notified by the Bureau of War Risk Insurance, on March 1, 1919, that he had been awarded such compensation from the 16th day of February, 1919, to continue during the period in which he was “totally disabled.” After he left the Bakke farm, he engaged in no gainful occupation, but lived upon his compensation. He was twice married, and in 1928 suffered a paralytic stroke, which the evidence indicates was probably due to syphilis, which it appears he had added to his other afflictions by that time. At the time of the trial he was partially paralyzed and unable to work.
There was sufficient evidence to justify a finding of total disability at the time he was discharged from the service. There was, however, no competent'evidence that at any time prior to March 31, 1919, he had a total permanent disability, although there is no dispute as to his having received in France a compound fracture and dislocation of his right elbow, which virtually rendered his right arm useless. The loss of use of one arm or one leg has never been considered total disability for war risk insurance. United States v. Weeks (C. C. A. 8) 62 F.(2d) 1030; United States v. Thomas (C. C. A. 4) 53 F.(2d) 192; United States v. Mayfield (C. C. A. 10) 64 F.(2d) 214; United States v. Ivey (C. C. A. 10) 64 F.(2d) 653; Thompson v. United States (C. C. A. 8) 65 F.(2d) 897, supra; United States v. Harris (C. C. A. 4) 66 F.(2d) 71; United States v. Adcock (C. C. A. 6) 69 F.(2d) 959; Miller v. United States (C. C. A. 5) 71 F.(2d) 361.
There was no testimony upon which a jury could have based a finding that the insured had, prior to March 31, 1919, an incurable paralysis.
“The existence 'of this specific disease was a strictly medical question"; the conclusions of laymen upon such an issue are without adequate basis, and, necessarily, mere speculation. United States v. Clapp (C. C. A. 2) 63 F.(2d) 793, 794.” Ætna Life Ins. Co. of Hartford v. Kelley (C. C. A. 8) 70 F.(2d) 589, 593, 93 A. L. R. 471.
Medical testimony that the insured, while his policy was in force, was suffering from paralysis in any form, is entirely lacking. Neither is there any adequate basis found in the evidence for any opinion that he was paralyzed while his insurance was in force.
The evidence that, after the insured was injured in France, he was recommended for discharge from service because of disability, is not evidence that he was at that time totally and permanently disabled. Blair v. United States (C. C. A. 8) 47 F.(2d) 109, 110. Nor does the evidence that he was given, after discharge, a total disability rating for compensation purposes, help his case. United States v. Golden (C. C. A. 10) 34 F.(2d) 367, 370; McNally v. United States (C. C. A. 8) 52 F.(2d) 440, 443; United States v. Thomas (C. C. A. 4) 53 F.(2d) 192, 195, supra; Demeter v. United States, 62 App. D. C. 208, 66 F.(2d) 188, 189. Moreover, his long delay in bringing suit was strong evidence that he was not totally and permanently disabled prior to March 31, 1919. Lumbra v. United States, 290 U. S. 551, 560, 561, 54 S. Ct. 272, 78 L. Ed. 492, supra; United States v. Spaulding, supra, opinion filed January 7, 1935.
The judgment is affirmed.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_treat
|
I
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
Edward ABLES v. Honorable Richard J. HOPKINS, Judge of the United States District Court for the District of Kansas.
No. 2724.
Circuit Court of Appeals, Tenth Circuit.
April 5, 1943.
No appearance for either party.
Before PHILLIPS, BRATTON and HUXMAN, Circuit Judges.
PER CURIAM.
Application for leave to file a petition for a writ of mandamus denied.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_appbus
|
3
|
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.
LIBERTY MUTUAL INSURANCE COMPANY, Liberty Mutual Fire Insurance Company, and Liberty Mutual Life Assurance Company of Boston, Plaintiffs-Appellants, v. Everett FRIEDMAN, Chief of the Insurance Compliance Staff, Social Security Administration; F. Ray Marshall, Secretary of Labor, United States Department of Labor; Weldon J. Rougeau, Director, Office of Federal Contract Compliance Programs; James Cardwell, Commissioner, Social Security Administration, Defendants-Appellees.
No. 80-1078.
United States Court of Appeals, Fourth Circuit.
Argued May 5, 1980.
Decided Jan. 9, 1981.
Kalvin M. Grove, Chicago, 111. (Jeffrey S. Goldman, Martin K. Denis, Fox & Grove, Chicago, 111., John K. Dane, Boston, Mass., on brief), for appellants.
Joseph Scott, Civ. Div., Dept, of Justice, Washington, D. C. (Carin Clauss, Sol. of Labor, James D. Henry, Associate Sol., Louis G. Ferrand, Jr., Dept, of Labor, Alice Daniel, Asst. Atty. Gen., Washington, D, C., Russell T. Baker, Jr., U. S. Atty., Baltimore, Md., William Kanter, Civ. Div., Dept, of Justice, Washington, D. C., on brief), for appellees.
Joel L. Finger, Barry Asen, Thomas C. Greble, Jackson, Lewis, Schnitzler & Krupman, New York City, on brief for American Ins. Assn., amicus curiae.
Edwin M. Zimmerman, William H. Allen, John B. Jones, Jr., Alex Kozinski, Covington & Burling, Washington, D. C., on brief for Alliance of American Insurers and Nat. Assn, of Independent Insurers, amicus curiae.
Thompson Powers, Martin D. Schneider-man, Christopher T. Lutz, John D. Bates, Steptoe & Johnson, and Douglas S. McDowell, McGuiness & Williams, Washington, D. C., on brief for Equal Employment Advisory Council, amicus curiae. '
Before HAYNSWORTH, Chief Judge, and BUTZNER and PHILLIPS, Circuit Judges.
JAMES DICKSON PHILLIPS, Circuit Judge:
Liberty Mutual Insurance Company and two related insurance companies (Liberty) challenge the district court’s conclusion that defendant Rougeau validly issued a determination by letter that the companies are government subcontractors and thus subject to the recordkeeping and affirmative action requirements of Executive Order 11,-246. We conclude that defendants’ action was outside any statutory authorization and reverse.
I
Under § 202 of Executive Order 11,246, as amended, contractors and subcontractors with the government are prohibited from discriminating in employment on the basis of “race, color, religion, sex, or national origin” and are required to take affirmative action to ensure equal employment opportunity. Section 201 of the Executive Order provides that the Secretary of Labor shall administer and enforce the order and grants rulemaking power to the Secretary. The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has promulgated regulations that require government contractors and subcontractors to furnish reports and other information about their affirmative action programs.
Liberty underwrites workers’ compensation insurance for many companies that contract with the government. Ordinarily, this type of insurance provides blanket coverage for all employees of the insured company whether or not the employees are performing work under a government contract or subcontract. During the time period involved in this case, Liberty has not written any insurance policies for any federal governmental agency and has not signed any contracts or subcontracts that include the antidiscrimination or affirmative action clauses required to be included in covered contracts by Executive Order 11,246.
In October 1977, defendant Friedman notified Liberty that Liberty was a government subcontractor under the definition found in 41 C.F.R. § 60-1.3 and therefore subject to the requirements of Executive Order 11,246. Section 60-1.3 defines subcontract as:
any agreement or arrangement between a contractor and any person (in which the parties do not stand in the relationship of an employer and an employee):
(1) For the furnishing of supplies or services or for the use of real or personal property, including lease arrangements, which, in whole or in part, is necessary to the performance of any one or more contracts; or
(2) Under which any portion of the contractor’s obligation under any one or more contracts is performed, undertaken, or assumed.
Because all states in the United States have enacted workers’ compensation laws, and employers, including government contractors, are obligated by statute to provide workers’ compensation insurance, defendant determined that Liberty was providing a service necessary to the performance of the federal contract and was, therefore, covered under subsection 1 of the definition above.
Liberty contested the Government’s determination that providers of workers’ compensation insurance to government contractors are government subcontractors and brought this declaratory judgment action under 28 U.S.C. §§ 2201, 2202. The district court rejected the challenge to defendants’ authority to classify Liberty as a subcontractor and entered judgment for defendants.
On this appeal Liberty argues that it is outside the definition of subcontractor found in the regulations; that, if Liberty is found to be within the subcontractor definition, the regulation is either outside the scope of Executive Order 11,246 or beyond the legislative grant of authority of Congress; that, if Executive Order 11,246 covers the insurance policies issued by Liberty, Executive Order 11,246 is an unlawful delegation of legislative authority; and that the Government may not bind Liberty to a contractual obligation to which it did not consent. Because we conclude that, although the regulatory definition of subcontract includes workers’ compensation insurance contracts, application of the Executive Order to Liberty is outside the scope of any grant of legislative authority, we need not address Liberty’s other contentions.
II
Though we reject it, Liberty’s first contention, that it is not a subcontractor within the meaning of the regulations, merits brief discussion. Specifically, the argument — characterized by the district court as an “imaginative, linguistic” one — is that in the definition of subcontract set out above the phrase “is necessary” in subsection 1 refers to “agreement.” Although employers, including government contractors, must provide workers’ compensation insurance, most states allow employers to self-insure. Because self-insurance is an option, an agreement with another company is not necessary to the performance of the government contract. The Government contends in its brief that “is necessary” refers to the phrase “[f]or the furnishing of supplies or services.” This construction, of course, would absorb the definition in subsection 2. At oral argument the Government asserted that subsection 1 applied only to the furnishing of legally necessary supplies and services. This last construction is apparently the one the Government has used in applying subsection 2 and is reflected in the determination letter sent to Liberty. In that letter the Government stated that Liberty was covered by Executive Order 11,246 because it issues workers’ compensation insurance, which all states require employers to provide. According to the Government, then, the furnishing of workers’ compensation is legally necessary whether an employer supplies its own insurance or purchases a policy from an insurance company, and Liberty, because it furnishes the legally necessary insurance, is a subcontractor under subsection 1. Although the definition found in the regulations is hardly a model of clarity, the Government’s construction is far more reasonable than that urged by Liberty. The difficulty with Liberty’s argument that “is necessary” refers to “agreement,” as aptly stated by the district court, is that “contractors engage ‘subcontractors’ to provide supplies or services for economic or other reasons. It is a rare instance in which a primary contractor has no choice but to engage the services of a subcontractor.” Under this construction subsection 1 would rarely, if ever, apply.
We conclude, as did the district court, that Liberty’s workers’ compensation policies issued to government contractors are subcontracts under the regulations.
Ill
Liberty’s second argument, that the broad definition of subcontractor, with its attendant consequences for meeting the recordkeeping and affirmative action requirements of Executive Order 11,246, is outside the scope of the Order or beyond any legislative grant of authority presents a more difficult question.
The history of Executive Order 11,246 is discussed in detail in Contractors Association v. Secretary of Labor, 442 F.2d 159, 168-71 (3d Cir. 1971), and need not be recounted here. Executive Order 11,246, as amended, “charge[s] the Secretary of Labor with ensuring that corporations that benefit from government contracts provide equal employment opportunity regardless of race or sex.” Chrysler Corp. v. Brown, 441 U.S. 281, 286, 99 S.Ct. 1705, 1709, 60 L.Ed.2d 208 (1979) (footnote omitted). Although the Executive Order is written in broad terms, the prohibition against discrimination in employment is clearly intended to cover both government contractors and their subcontractors. Section 202(7) of the Order specifically requires contractors to include in all subcontracts the antidiscrimination, affirmative action, and recordkeeping provisions required by Executive Order 11,246. Subcontract is not defined within the Executive Order, but § 201 provides that the Secretary of Labor “shall adopt such rules and regulations ... as are deemed necessary and appropriate to achieve the purposes” of the Order. Those purposes, as declared by the Supreme Court in Chrysler, “are an end to discrimination in employment by the Federal Government and those who deal with the Federal Government.” 441 U.S. at 307, 99 S.Ct. at 1720. Because Executive Order 11,246 is clearly intended to cover subcontractors and because the term “subcontractor” has no “single exact meaning,” the Secretary had the power to define, by regulation, which subcontracts are covered so long as the definition is within the purposes of the Executive Order and the statutory grant of authority. See Chrysler Corp. v. Brown, 441 U.S. at 306-07, 99 S.Ct. at 1720. Although the regulation’s broad-ranging definition of subcontract is arguably consistent with the purposes of the Executive Order, we conclude that application of the Executive Order to plaintiffs is not reasonably within the contemplation of any statutory grant of authority.
The question before us is not whether Congress could require insurance companies providing workers’ compensation insurance to federal contractors to comply with the affirmative action requirements of Executive Order 11,246, the question is “whether or to what extent Congress did grant ... such authority” to the executive branch of the government. See NAACP v. Federal Power Commission, 425 U.S. 662, 665, 96 S.Ct. 1806, 1809, 48 L.Ed.2d 284 (1976). Determining whether defendants have the statutory authorization to require Liberty to comply with Executive Order 11,246 is rendered difficult because “[t]he origins of the congressional authority for Executive Order 11,246 are somewhat obscure and have been roundly debated by commentators and courts.” Chrysler Corp. v. Brown, 441 U.S. at 304, 99 S.Ct. at 1719.
The Chrysler Court acknowledged that several sources of congressional authorization have been suggested by lower courts, including the Federal Property and Administrative Services Act of 1949, Titles VI and VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Act of 1972, and “some more general notion that the Executive can impose reasonable contractual requirements in the exercise of its procurement authority.” Id. at 305-06, 99 S.Ct. at 1720. For the purposes of decision in Chrysler the Court was not required to determine the precise source of authority for Executive Order 11,246 because it held that the regulation there being challenged was not authorized by any of the arguable statutory grants of authority. Id. at 304-06. 99 S.Ct. at 1719-20.
The challenge in Chrysler was to OFCCP rules that provided for disclosure of reports submitted by an employer pursuant to Executive Order 11,246. The Court refused to accord the challenged rule the “force and effect of law” in part because none of the arguable statutory grants of authority contemplated the disclosure rule being challenged. Id. at 304-08, 99 S.Ct. at 1719-1721. Although Chrysler involved a challenge to a particular aspect of the OFCCP’s administration of Executive Order 11,246 instead of a threshold challenge, as here, to the legitimacy of the order’s attempted application for any purpose to the challenging employer, we think the method of analysis used in Chrysler is equally applicable here, and to that we now turn.
IV
A congressional grant of legislative authority need not be specific in order to sustain the validity of regulations promulgated pursuant to the grant, but a court must “reasonably be able to conclude that the grant of authority contemplates the regulations issued.” Id. at 308, 99 S.Ct. at 1721. Our examination of the possible statutory sources of congressional authorization for Executive Order 11,246 convinces us that none of the statutes reasonably contemplates that Liberty, as a provider of workers’ compensation insurance to government contractors, may be required to comply with Executive Order 11,246. We conclude therefore that none of the cited statutes authorize the action taken by defendants.
A.
First, we consider as a possible source the general procurement power of Congress as delegated to the Executive by the Federal Property and Administrative Services Act. 40 U.S.C. § 471 et seq. (The Procurement Act). Congress has said of this Act that its purpose is to provide “an economical and efficient system” for, among other objectives, the procurement of personal property and services. Id. § 471. The Act authorizes Executive Orders “necessary to effectuate [its] provisions,” id. § 486(a), but does not mention employment discrimination. See also Chrysler Corp. v. Brown, 441 U.S. at 304 n.34, 99 S.Ct. at 1719 n.34.
Several cases, some specifically relied upon by defendants, arguably support the view that this Act provides the necessary authorization for application of the Order to Liberty. We think that, rightly analyzed, they do not. In Farmer v. Philadelphia Electric Co., 329 F.2d 3 (3d Cir. 1964), the court stated that the delegation to the President in § 486(a) was the statutory authorization for a predecessor of Executive Order 11,246, id. at 7-8, but that conclusion was not necessary to the decision in Farmer. The court in Farkas v. Texas Instrument, Inc., 375 F.2d 629 (5th Cir. 1967), reached the same conclusion, id. at 632 n.1, but that conclusion was also dictum. See Chrysler Corp. v. Brown, 441 U.S. at 304 n.34, 99 S.Ct. at 1719 n.34, citing Contractors Association v. Secretary of Labor, 442 F.2d at 167.
More apposite, and to be reckoned with, is Contractors Association in which the court squarely faced the question whether the Executive may impose the contract terms required by Executive Order 11,246 upon federally assisted state construction contracts. The court noted that neither Farkas nor Farmer had analyzed the relation between the statutory grant of authority in § 486(a) and the nondiscrimination objectives of the Executive Orders, 442 F.2d at 167; see Chrysler Corp. v. Brown, 441 U.S. at 304 n.34, 99 S.Ct. at 1719 n.34, but went on to find that relationship sufficiently established in respect of federally assisted construction projects because of the strong federal interest in ensuring that the cost and progress of these projects were not adversely affected by an artificial restriction of the labor pool caused by discriminatory employment practices. As the court noted, the Executive Order applies to all direct federal procurement contracts but, with respect to federally assisted contracts, extends its coverage to construction contracts only. This choice was significant to the court because it involved the one type of federally assisted contract in which discrimination would be most likely adversely to affect cost and progress of projects. Id. at 170. The Government’s interest in keeping costs low and ensuring completion of state construction projects that receive federal assistance was considered identical to the Government’s interest with respect to direct procurement contracts. Id.
Contractors Association thus found in the Procurement Act both a general source of congressional authority for Executive Order 11,246 and a specific source of authority for the particular application there being challenged. Reserving judgment on the first of these, cf. Cramer v. Virginia Commonwealth Univ., 415 F.Supp. 673, 680 (E.D.Va. 1976) (questioning Contractors Association’s analysis); Note, Doing Good the Wrong Way: The Case for Delimiting Presidential Power Under Executive Order No. 11,246, 33 Vand.L.Rev. 921, 931 (1980) (questionable as general source), we conclude that under the test applied in Contractors Association there can be found in the Procurement Act no authorization for the specific application being challenged in the instant case.
The key point in Contractors Association is its recognition that any application of the Order must be reasonably related to the Procurement Act’s purpose of ensuring efficiency and economy in government procurement (whether direct or assisted) in order to lie within the statutory grant. This requirement of a reasonably close nexus between the efficiency and economy criteria of the Procurement Act and any exactions imposed upon federal contractors by Executive Orders promulgated under its authority has recently been highlighted by the District of Columbia Circuit in a closely related context. In AFL-CIO v. Kahn, 618 F.2d 784 (1979) (en banc), the court upheld as having the force and effect of law the requirement of Executive Order 12,092 that federal contractors certify compliance with voluntary wage and price guidelines established by the Council on Wage and Price Stability. Though, as in Contractors Association, the Kahn court found the Executive Order’s requirements to fall within the statutory authority of the Procurement Act, the several opinions of the court took great pains to emphasize that the court’s holding was rested narrowly upon the manifestly close nexus between the Procurement Act’s criteria of efficiency and economy and the Executive Order’s predominant objective of containing procurement costs. Id. at 792-93 (majority opinion); id. at 796-97 (Bazelon, J. concurring); id. at 797 (Tamm, J. concurring); cf. id. at 797 (MacKinnon, J. dissenting) (no statutory authority for order).
Assuming, without deciding, that the Procurement Act does provide constitutional authorization for some applications of Executive Order 11,246, we conclude that, in any event, the authorization could validly extend no further than to those applications satisfying the nexus test used in Contractors Association and Kahn. Applying that test here, we are satisfied that it is not met.
In applying the test, it is important first to note a respect in which the record before the Contractors Association court differed materially from that developed in this case to show the relationship between Procurement Act criteria and Executive Order application. In Contractors Association, but not in the instant case, there were factual findings in the record which tended to show a demonstrable relationship between the two which was not apparent from a consideration alone of the Act and the Order.
Before the plan challenged in Contractors Association was implemented, a series of public hearings was held in the targeted area that resulted in administrative findings which reflected serious underrepresentation of minority employees in six trades. The mathematical disparity was found to be caused by exclusionary practices of trade unions rather than any lack of qualified minority applicants in the labor pool. 442 F.2d at 164, 173. These findings buttressed the Contractors Association court’s conclusion that the Executive was acting to protect the federal government’s financial interest in the state projects thereby establishing the sufficiently close nexus sought by both the Contractors Association and Kahn courts. Cf. Fullilove v. Klutznick, — U.S. —, —, 100 S.Ct. 2758, 2785-90, 65 L.Ed.2d 902 (1980) (Powell, J., concurring: importance of legislative findings of discrimination to sustain Act of Congress mandating affirmative action in federal grants for local public works projects).
By contrast, no such findings were made in the case before us. Liberty is not itself a federal contractor and there is, therefore, no direct connection to federal procurement. Instead, Liberty provides blanket workers’ compensation insurance to employers that hold federal contracts. There are no findings that suggest what percentage of the total price of federal contracts may be attributed to the cost of this insurance. Further, there is no suggestion that insurers have practiced the deliberate exclusion of minority employees found to have occurred in Contractors Association. The connection between the cost of workers’ compensation policies, for which employers purchase a single policy to cover employees working on both federal and nonfederal contracts without distinction between the two, and any increase in the cost of federal contracts that could be attributed to discrimination by these insurers is simply too attenuated to allow a reviewing court to find the requisite connection between procurement costs and social objectives.
Defendants rely upon, and we of course recognize that there are decisions from other courts that can be read to reject the need for any such nexus between Procurement Act economy/efficiency criteria and Executive Order social objectives in order to uphold challenged applications of the Order. See United States v. New Orleans Public Service, Inc., 553 F.2d 459 (5th Cir. 1977), vacated and remanded on other grounds, 436 U.S. 942, 98 S.Ct. 2841, 56 L.Ed.2d 783 (1978); Rossetti Contracting Co. v. Brennan, 508 F.2d 1039, 1045 n.18 (7th Cir. 1975); Northeast Construction Co. v. Romney, 485 F.2d 752, 760-61 (D.C.Cir.1973). In what could be taken as the most extreme view expressed in these decisions, one characterizes the other two as standing for “the proposition that equal employment goals themselves, reflecting important national policies, validate the use of the procurement power in the context of the [Executive] Order.” New Orleans Public Service, 553 F.2d at 467. To the extent this quotation rightly characterizes these holdings, and to the extent it reflects a considered rejection of the requirement of nexus between Procurement Act purposes and Executive Order objectives that we read in Contractors Association and Kahn and that we apply here, we simply disagree. The plain implication of such a rejection would be that regulations promulgated under an Executive Order that traces its lawmaking authority to a particular statute need bear no relation to the purposes of that authorizing statute so long as the regulations bear relation to national policies reflected in other sources — common law, statutory, or constitutional. This would render meaningless the simple, fundamental separation of powers requirement, recently reasserted by the Supreme Court in Chrysler, that such an “exercise of quasi-legislative authority by governmental departments and agencies must be rooted in a grant of [legislative] power by the Congress ...,” 441 U.S. at 302, 99 S.Ct. at 1718, and lie “reasonably within the contemplation of that grant of authority.” Id. at 306, 99 S.Ct. at 1720.
As indicated, we think that this fundamental requirement dictates application of the sort of nexus test we apply here, and that when applied to the regulations here in question and the Procurement Act it is plain that the former do not lie “reasonably within the contemplation of” the latter.
B.
We next consider as possible sources of statutory authorization for the Executive Order Titles VI and VII of the Civil Rights Act of 1964. The short answer to this possibility is that neither Title contains any express delegation of substantive lawmaking authority to the President. Chrysler, 441 U.S. at 305 n.35, 99 S.Ct. at 1719 n.35.
Indeed, as the Supreme Court pointed out in Chrysler, the question of the relationship of these Titles to Executive Order 11,246 has “usually been put in terms of whether Executive Order 11,246 is inconsistent with these titles .. .,” 441 U.S. at 305 n.35, 99 S.Ct. at 1719 n.35, rather than in terms of whether the latter provide authorization for the former.
C.
The final possible source of congressional authorization to be considered is that contended by defendants to have occurred by “ratification” or “negative authorization” of the Executive Order flowing from the rejection in 1972 of several amendments intended to circumscribe the role of the Executive Order program. The argument depends essentially upon the congressional debates surrounding adoption of the Equal Employment Opportunity Act of 1972. 42 U.S.C. §§ 2000e to 2000e-17 (1976). See Chrysler, 441 U.S. at 306 n.36, 99 S.Ct. at 1720 n.36; Legal Aid Society v. Brennan, 608 F.2d 1319, 1329 n.14 (9th Cir. 1979); United States v. New Orleans Public Service, Inc., 553 F.2d at 467.
Even if “ratification” by such a process might in some circumstances be properly found — a matter of some general dubiety when its potential effect upon the dynamics of the legislative process is carefully considered — we do not think it can properly be found here. The rejection in 1972 of a series of amendments which would have cut back the Executive Order program in existence at that time, cannot fairly be considered to contemplate a grant of authority to the Executive to extend the program to Liberty in 1977.
V
Defendants acted outside any grant of legislative authority when they sought to impose the requirements of Executive Order 11,246 upon plaintiffs. Without this critical connection to legislative authorization, defendants’ action cannot be given effect. The decision of the district court is reversed.
REVERSED.
. Defendant Rougeau, director of the Office of Federal Contract Compliance Programs, and the other defendants-appellees are federal government officials assigned responsibility in the Executive Order program.
. Exec.Order No. 11,246, 3 C.F.R. 339 (1964-1965 Compilation), as amended by Exec.Order No. 11,375, 3 C.F.R. 684 (1966-1970 Compilation).
. Section 202(7) requires the contractor to include the antidiscrimination and affirmative action clauses in all nonexempt subcontracts.
. 41 C.F.R. § 60-1.7.
. MacEvoy Co. v. United States, 322 U.S. 102, 108, 64 S.Ct. 890, 894, 88 L.Ed. 1163 (1944). In MacEvoy, the Supreme Court judicially defined “subcontractor” under the Miller Act, 40 U.S.C. § 270a et seq. The Act itself did not define the term, and the Court noted,
In a broad, generic sense a subcontractor includes anyone who has a contract to furnish labor or material to a prime contractor.... But under the more technical meaning, as established by usage in the building trades, a subcontractor is one who performs for and takes from the prime contractor a specific part of the labor or material requirements of the original contract, thus excluding ordinary laborers and materialmen.
Id. at 108-09, 64 S.Ct. at 894-5. Because the term is not susceptible to a uniform definition, we do not attempt to state the precise boundaries within which the Secretary may validly require compliance with the Executive Order, but we do note that the Secretary’s definition of subcontractor is beyond the scope even of the “broad, generic” sense of the term.
. The Executive Order states that it is promulgated “[u]nder and by virtue of the authority vested in [the] President of the United States by the Constitution and statutes of the United States. ...” 3 C.F.R. 339 (1964-1965 Compilation). There is no reference to a specific statutory source.
. 40 U.S.C. § 471 et seq.
. 42 U.S.C. §§ 2000d to 2000d-4, 2000e to 2000e-17.
. 42 U.S.C. §§ 2000e, 2000e-1 to -6, -8, -9, -13 to -17.
. In response to Liberty’s contention that authorization for the challenged application of Executive Order 11,246 must be found in a particular legislative grant, defendants take the position that “there is no ... burden on the government” to identify the legislative grant. Brief for Appellee at 17. Consistent with this position, defendants have declined to stake their claim of authority on any particular statutory or constitutional sources, relying instead on a general contention that “Congress has generally approved of, and given its sanction to, the executive order program .... ” Id. Because we believe that the particular source must be found, our analysis must proceed, as in Chrysler, to consider all reasonably arguable sources. These are generally deducible from the authorities relied upon by defendants in their argument addressed to the lack of authorization. Generally, we run the gamut of the possible sources identified in Chrysler.
. On careful analysis, this might be questioned. The discussion of this general proposition in Northeast, for example, is technically dicta, since the court there simply assumed the validity of the Executive Order, and the nexus-issue was not directly in contention. See id. at 760-61. Furthermore, in all three cases, whatever the course of general discussion in the opinions, there is great likelihood that upon a Contractors Association-type analysis, a sufficient efficiency/economy nexus might well have been demonstrable. All three involved construction contractors as to whom the restricted labor pool analysis might well have applied. Certainly in all three such a nexus is more readily surmised from the mere nature of the contracts than could possibly be shown in relation to the insurance “sub-contracts” involved in the instant case.
. See Note, Doing Good the Wrong Way: The Case for Delimiting Presidential Power Under Executive Order No. 11,246, 33 Vand.L.Rev. 921, 946-47 (1980).
. The possibility that authorization for the Executive Order might be found independently of statutory sources in the “inherent powers” of the President inferable from the general powers conferred directly upon him by article II of the Constitution is completely foreclosed by Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). There the Supreme Court held that the “inherent powers” of the President under his constitutional authority as Commander-in-Chief did not support his executive order directing seizure of the steel mills during the Korean conflict. This was legislative action and in the absence of any delegation of lawmaking power by the Congress, none could be inferred from the President’s constitutional powers to see that the laws are faithfully executed. Id. at 587, 72 S.Ct. at 866. The same reasoning must apply to the lawmaking power clearly assumed in Executive Order 11,246.
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_respond1_3_2
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I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
Carl Leroy LEONARD, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 74-1740
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Sept. 23, 1974.
Hartwell Davis, Montgomery, Ala. (Court-appointed), for petitioner-appellant.
Ira DeMent, U. S. Atty., Wade B. Perry, Jr., Asst. U. S. Atty., Montgomery, Ala., for respondent-appellee.
Before GEWIN, GODBOLD and CLARK, Circuit Judges.
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.
PER CURIAM:
This appeal is taken from an order of the district court denying the appellant’s motion to vacate his federal sentence pursuant to 28 U.S.C. § 2255. We affirm.
Appellant, represented by privately retained counsel, was convicted on his plea of guilty of the charge of rape on land within the special territorial jurisdiction of the United States, in violation of 18 U.S.C. § 2031. He was sentenced to 30 years imprisonment. In his motion to vacate sentence, appellant alleged as grounds for relief that the district court was without jurisdiction because the crime did not occur within the boundaries of federal lands. The district court denied relief based upon a finding that the crime originated and was partially committed on federal lands although some of the. acts involved transpired elsewhere.
The undisputed facts show that appellant accosted his victim in the parking lot of the Airman’s Dining Hall on Maxwell Air Force Base. He showed her a screwdriver and told her he wouldn’t hurt her if she accompanied him. He hit and stabbed her with the screwdriver, forced her into his automobile, then drove to a motel off the base where actual penetration occurred. Appellant contends that the rape occurred off the base and, therefore the federal court was without jurisdiction.
A sovereign has jurisdiction to try an offense where only a part of that offense has been committed within its boundaries. Ford v. United States, 273 U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793 (1922); Rivard v. United States, 375 F.2d 882 (5th Cir. 1967), cert. denied, Groleau v. United States, 389 U.S. 884, 88 S.Ct. 151, 19 L.Ed.2d 181; also United States v. Vicars, 467 F.2d 452 (5th Cir. 1972), cert. denied, 410 U.S. 967, 93 S.Ct. 1451, 35 L.Ed.2d 702; United States v. Correa-Negron, 462 F.2d 613 (5th Cir. 1972); People v. Buffum, 40 Cal.2d 709, 256 P.2d 317 (1953); Caldwell v. State of Miss., 176 Miss. 80, 167 So. 779 (1936). Therefore, if appellant committed a part of the crime on federal lands, the federal court had jurisdiction.
“The federal crime of rape carries with it the requirement of proof of the use of force by the offender and of an absence of consent by the victim.” Williams v. United States, 327 U.S. 711, 715, 66 S.Ct. 778, 780, 90 L.Ed. 962 (1946). See also United States v. Bryant, 137 U.S.App.D.C. 124, 420 F.2d 1327 (1969); Baber v. United States, 116 U.S.App.D.C. 358, 324 F.2d 390 (1963), cert. denied, 376 U.S. 972, 84 S.Ct. 1139, 12 L.Ed.2d 86; United States v. Rider, 282 F.2d 476 (9th Cir. 1960). In this case the element of force employed by appellant to achieve his purpose began on federal lands and continued to the consummation of the crime at a site off the Air Force Base. We conclude that the trial court had jurisdiction and the judgment of conviction is affirmed.
Issues raised in the appellate briefs for the first time will not be considered by this court, but should first be presented to the district court.
Affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
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sc_caseorigin
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035
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
Luis A. NIEVES, et al., Petitioners
v.
Russell P. BARTLETT
No. 17-1174
Supreme Court of the United States.
Argued November 26, 2018
Decided May 28, 2019
Jahna Lindemuth, Attorney General, Dario Borghesan, Anna R. Jay, Stephanie Galbraith Moore, Anchorage, AK, for Petitioners.
Jeffrey L. Fisher, Pamela S. Karlan, Leah M. Litman, Stanford Law School, Supreme Court, Litigation Clinic, Stanford, CA, Kerri L. Barsh, Greenberg Traurig, Miami, FL, Zane D. Wilson, Tyler P. Broker, CSG, Inc., Fairbanks, AK, for Respondent.
Chief Justice ROBERTS delivered the opinion of the Court.
Respondent Russell Bartlett sued petitioners-two police officers-alleging that they retaliated against him for his protected First Amendment speech by arresting him for disorderly conduct and resisting arrest. The officers had probable cause to arrest Bartlett, and we now decide whether that fact defeats Bartlett's First Amendment claim as a matter of law.
I
A
Bartlett was arrested during "Arctic Man," a weeklong winter sports festival held in the remote Hoodoo Mountains near Paxson, Alaska. Paxson is a small community that normally consists of a few dozen residents. But once a year, upwards of 10,000 people descend on the area for Arctic Man, an event known for both extreme sports and extreme alcohol consumption. The mainstays are high-speed ski and snowmobile races, bonfires, and parties. During that week, the Arctic Man campground briefly becomes one of the largest and most raucous cities in Alaska.
The event poses special challenges for law enforcement. Snowmobiles, alcohol, and freezing temperatures do not always mix well, and officers spend much of the week responding to snowmobile crashes, breaking up fights, and policing underage drinking. Given the remote location of the event, Alaska flies in additional officers from around the State to provide support. Still, the number of police remains limited. Even during the busiest periods of the event, only six to eight officers are on patrol at a time.
On the last night of Arctic Man 2014, Sergeant Luis Nieves and Trooper Bryce Weight arrested Bartlett. The parties dispute certain details about the arrest but agree on the general course of events, some of which were captured on video by a local news reporter.
At around 1:30 a.m., Sergeant Nieves and Bartlett first crossed paths. Nieves was asking some partygoers to move their beer keg inside their RV because minors had been making off with alcohol. According to Nieves, Bartlett began belligerently yelling to the RV owners that they should not speak with the police. Nieves approached Bartlett to explain the situation, but Bartlett was highly intoxicated and yelled at him to leave. Rather than escalate the situation, Nieves left. Bartlett disputes that account. According to Bartlett, he was not drunk at that time and never yelled at Nieves. He claims it was Nieves who became aggressive when Bartlett refused to speak with him.
Several minutes later, Bartlett saw Trooper Weight asking a minor whether he and his underage friends had been drinking. According to Weight, Bartlett approached in an aggressive manner, stood between Weight and the teenager, and yelled with slurred speech that Weight should not speak with the minor. Weight claims that Bartlett then stepped very close to him in a combative way, so Weight pushed him back. Sergeant Nieves saw the confrontation and rushed over, arriving right after Weight pushed Bartlett. Nieves immediately initiated an arrest, and when Bartlett was slow to comply with his orders, the officers forced him to the ground and threatened to tase him.
Again, Bartlett tells a different story. He denies being aggressive, and claims that he stood close to Weight only in an effort to speak over the loud background music. And he was slow to comply with Nieves's orders, not because he was resisting arrest, but because he did not want to aggravate a back injury. After Bartlett was handcuffed, he claims that Nieves said: "[B]et you wish you would have talked to me now." 712 Fed. Appx. 613, 616 (C.A.9 2017).
The officers took Bartlett to a holding tent, where he was charged with disorderly conduct and resisting arrest. He had sustained no injuries during the episode and was released a few hours later.
B
The State ultimately dismissed the criminal charges against Bartlett, and Bartlett then sued the officers under 42 U.S.C. § 1983, which provides a cause of action for state deprivations of federal rights. As relevant here, he claimed that the officers violated his First Amendment rights by arresting him in retaliation for his speech. The protected speech, according to Bartlett, was his refusal to speak with Nieves earlier in the evening and his intervention in Weight's discussion with the underage partygoer. The officers responded that they arrested Bartlett because he interfered with an investigation and initiated a physical confrontation with Weight. The District Court granted summary judgment for the officers. The court determined that the officers had probable cause to arrest Bartlett and held that the existence of probable cause precluded Bartlett's First Amendment retaliatory arrest claim.
The Ninth Circuit disagreed. 712 Fed. Appx. 613. Relying on its prior decision in Ford v. Yakima, 706 F. 3d 1188 (2013), the court held that a plaintiff can prevail on a First Amendment retaliatory arrest claim even in the face of probable cause for the arrest. According to the Ninth Circuit, Bartlett needed to show only (1) that the officers' conduct would "chill a person of ordinary firmness from future First Amendment activity," and (2) that he had advanced evidence that would "enable him ultimately to prove that the officers' desire to chill his speech was a but-for cause" of the arrest. 712 Fed. Appx. at 616 (internal quotation marks omitted). The court concluded that Bartlett had satisfied both requirements: A retaliatory arrest is sufficiently chilling, and Bartlett had presented enough evidence that his speech was a but-for cause of the arrest. The only causal evidence relied on by the court was Bartlett's affidavit alleging that Sergeant Nieves said "bet you wish you would have talked to me now." If that allegation were true, the court reasoned, a jury might conclude that the officers arrested Bartlett in retaliation for his statements earlier that night.
The officers petitioned for review in this Court, and we granted certiorari. 585 U.S. ----, 138 S.Ct. 2709, 201 L.Ed.2d 1095 (2018).
II
We are asked to resolve whether probable cause to make an arrest defeats a claim that the arrest was in retaliation for speech protected by the First Amendment. We have considered this issue twice in recent years. On the first occasion, we ultimately left the question unanswered because we decided the case on the alternative ground of qualified immunity. See Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012). We took up the question again last Term in Lozman v.Riviera Beach, 585 U.S. ----, 138 S.Ct. 1945, 201 L.Ed.2d 342 (2018). Lozman involved unusual circumstances in which the plaintiff was arrested pursuant to an alleged "official municipal policy" of retaliation. Id., at ----, 138 S.Ct., at 1954. Because those facts were "far afield from the typical retaliatory arrest claim," we reserved judgment on the broader question presented and limited our holding to arrests that result from official policies of retaliation. Id., at ----, 138 S.Ct., at 1953-1954. In such cases, we held, probable cause does not categorically bar a plaintiff from suing the municipality. Id., at ---- - ----, 138 S.Ct., at 1954-1955. We now take up the question once again, this time in a more representative case.
A
"[A]s a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions" for engaging in protected speech. Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). If an official takes adverse action against someone based on that forbidden motive, and "non-retaliatory grounds are in fact insufficient to provoke the adverse consequences," the injured person may generally seek relief by bringing a First Amendment claim. Ibid. (citing Crawford-El v. Britton, 523 U.S. 574, 593, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) ; Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 283-284, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) ).
To prevail on such a claim, a plaintiff must establish a "causal connection" between the government defendant's "retaliatory animus" and the plaintiff's "subsequent injury." Hartman, 547 U.S. at 259, 126 S.Ct. 1695. It is not enough to show that an official acted with a retaliatory motive and that the plaintiff was injured-the motive must cause the injury. Specifically, it must be a "but-for" cause, meaning that the adverse action against the plaintiff would not have been taken absent the retaliatory motive. Id., at 260, 126 S.Ct. 1695 (recognizing that although it "may be dishonorable to act with an unconstitutional motive," an official's "action colored by some degree of bad motive does not amount to a constitutional tort if that action would have been taken anyway").
For example, in Mt. Healthy, a teacher claimed that a school district refused to rehire him in retaliation for his protected speech. We held that even if the teacher's "protected conduct played a part, substantial or otherwise, in [the] decision not to rehire," he was not entitled to reinstatement "if the same decision would have been reached" absent his protected speech. 429 U.S. at 285, 97 S.Ct. 568. Regardless of the motives of the school district, we concluded that the First Amendment "principle at stake is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the [protected speech]." Id., at 285-286, 97 S.Ct. 568.
For a number of retaliation claims, establishing the causal connection between a defendant's animus and a plaintiff's injury is straightforward. Indeed, some of our cases in the public employment context "have simply taken the evidence of the motive and the discharge as sufficient for a circumstantial demonstration that the one caused the other," shifting the burden to the defendant to show he would have taken the challenged action even without the impermissible motive. Hartman, 547 U.S. at 260, 126 S.Ct. 1695 (citing Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568 ;
Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 270, n. 21, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) ). But the consideration of causation is not so straightforward in other types of retaliation cases.
In Hartman, for example, we addressed retaliatory prosecution cases, where "proving the link between the defendant's retaliatory animus and the plaintiff's injury... 'is usually more complex than it is in other retaliation cases.' " Lozman, 585 U.S., at ----, 138 S.Ct., at 1952-1953 (quoting Hartman, 547 U.S. at 261, 126 S.Ct. 1695 ). Unlike most retaliation cases, in retaliatory prosecution cases the official with the malicious motive does not carry out the retaliatory action himself-the decision to bring charges is instead made by a prosecutor, who is generally immune from suit and whose decisions receive a presumption of regularity. Lozman, 585 U.S., at ---- - ----, 138 S.Ct., at 1952-1953. Thus, even when an officer's animus is clear, it does not necessarily show that the officer "induced the action of a prosecutor who would not have pressed charges otherwise." Hartman, 547 U.S. at 263, 126 S.Ct. 1695.
To account for this "problem of causation" in retaliatory prosecution claims, Hartman adopted the requirement that plaintiffs plead and prove the absence of probable cause for the underlying criminal charge. Ibid. ; see id., at 265-266, 126 S.Ct. 1695. As Hartman explained, that showing provides a "distinct body of highly valuable circumstantial evidence" that is "apt to prove or disprove" whether retaliatory animus actually caused the injury: "Demonstrating that there was no probable cause for the underlying criminal charge will tend to reinforce the retaliation evidence and show that retaliation was the but-for basis for instigating the prosecution, while establishing the existence of probable cause will suggest that prosecution would have occurred even without a retaliatory motive." Id., at 261, 126 S.Ct. 1695. Requiring plaintiffs to plead and prove the absence of probable cause made sense, we reasoned, because the existence of probable cause will be at issue in "practically all" retaliatory prosecution cases, has "high probative force," and thus "can be made mandatory with little or no added cost." Id., at 265, 126 S.Ct. 1695. Moreover, imposing that burden on plaintiffs was necessary to suspend the presumption of regularity underlying the prosecutor's charging decision-a presumption we "do not lightly discard." Id., at 263, 126 S.Ct. 1695 ; see also id., at 265, 126 S.Ct. 1695. Thus, Hartman requires plaintiffs in retaliatory prosecution cases to show more than the subjective animus of an officer and a subsequent injury; plaintiffs must also prove as a threshold matter that the decision to press charges was objectively unreasonable because it was not supported by probable cause.
B
Officers Nieves and Weight argue that the same no-probable-cause requirement should apply to First Amendment retaliatory arrest claims. Their primary contention is that retaliatory arrest claims involve causal complexities akin to those we identified in Hartman, and thus warrant the same requirement that plaintiffs plead and prove the absence of probable cause. Brief for Petitioners 20-30.
As a general matter, we agree. As we recognized in Reichle and reaffirmed in Lozman, retaliatory arrest claims face some of the same challenges we identified in Hartman : Like retaliatory prosecution cases, "retaliatory arrest cases also present a tenuous causal connection between the defendant's alleged animus and the plaintiff's injury." Reichle, 566 U.S. at 668, 132 S.Ct. 2088. The causal inquiry is complex because protected speech is often a "wholly legitimate consideration" for officers when deciding whether to make an arrest. Ibid. ; Lozman, 585 U.S., at ----, 138 S.Ct., at 1953. Officers frequently must make "split-second judgments" when deciding whether to arrest, and the content and manner of a suspect's speech may convey vital information-for example, if he is "ready to cooperate" or rather "present[s] a continuing threat." Id., at ----, 138 S.Ct., at 1953 (citing District of Columbiav.Wesby, 583 U.S. ----, ----, 138 S.Ct. 577, 587-588, 199 L.Ed.2d 453 (2018) ("suspect's untruthful and evasive answers to police questioning could support probable cause")). Indeed, that kind of assessment happened in this case. The officers testified that they perceived Bartlett to be a threat based on a combination of the content and tone of his speech, his combative posture, and his apparent intoxication.
In addition, "[l]ike retaliatory prosecution cases, evidence of the presence or absence of probable cause for the arrest will be available in virtually every retaliatory arrest case." Reichle, 566 U.S. at 668, 132 S.Ct. 2088. And because probable cause speaks to the objective reasonableness of an arrest, see Ashcroft v. al-Kidd, 563 U.S. 731, 736, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011), its absence will-as in retaliatory prosecution cases-generally provide weighty evidence that the officer's animus caused the arrest, whereas the presence of probable cause will suggest the opposite.
To be sure, Reichle and Lozman also recognized that the two claims give rise to complex causal inquiries for somewhat different reasons. Unlike retaliatory prosecution cases, retaliatory arrest cases do not implicate the presumption of prosecutorial regularity or necessarily involve multiple government actors (although this case did). Reichle, 566 U.S. at 668-669, 132 S.Ct. 2088 ; Lozman, 585 U.S., at ----, 138 S.Ct., at 1953-1954. But regardless of the source of the causal complexity, the ultimate problem remains the same. For both claims, it is particularly difficult to determine whether the adverse government action was caused by the officer's malice or the plaintiff's potentially criminal conduct. See id., at ----, 138 S.Ct., at 1953 (referring to "the complexity of proving (or disproving) causation" in retaliatory arrest cases). Because of the "close relationship" between the two claims, Reichle, 566 U.S. at 667, 132 S.Ct. 2088, their related causal challenge should lead to the same solution: The plaintiff pressing a retaliatory arrest claim must plead and prove the absence of probable cause for the arrest.
Bartlett, in defending the decision below, argues that the "causation in retaliatory-arrest cases is not inherently complex" because the "factfinder simply must determine whether the officer intended to punish the plaintiff for the plaintiff's protected speech." Brief for Respondent 36-37; see also post, at 1737 - 1738 (SOTOMAYOR, J., dissenting). That approach fails to account for the fact that protected speech is often a legitimate consideration when deciding whether to make an arrest, and disregards the resulting causal complexity previously recognized by this Court. See Reichle, 566 U.S. at 668, 132 S.Ct. 2088 ; Lozman, 585 U.S., at ----, 138 S.Ct., at 1953.
Bartlett's approach dismisses the need for any threshold showing, moving directly to consideration of the subjective intent of the officers. In the Fourth Amendment context, however, "we have almost uniformly rejected invitations to probe subjective intent." al-Kidd, 563 U.S. at 737, 131 S.Ct. 2074 ; see also Kentucky v. King, 563 U.S. 452, 464, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) ("Legal tests based on reasonableness are generally objective, and this Court has long taken the view that evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer." (internal quotation marks omitted)). Police officers conduct approximately 29,000 arrests every day-a dangerous task that requires making quick decisions in "circumstances that are tense, uncertain, and rapidly evolving." Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). To ensure that officers may go about their work without undue apprehension of being sued, we generally review their conduct under objective standards of reasonableness. See Atwater v. Lago Vista, 532 U.S. 318, 351, and n. 22, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) ; Harlow v. Fitzgerald, 457 U.S. 800, 814-819, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Thus, when reviewing an arrest, we ask "whether the circumstances, viewed objectively, justify [the challenged] action," and if so, conclude "that action was reasonable whatever the subjective intent motivating the relevant officials." al-Kidd, 563 U.S. at 736, 131 S.Ct. 2074 (internal quotation marks omitted). A particular officer's state of mind is simply "irrelevant," and it provides "no basis for invalidating an arrest." Devenpeck v. Alford, 543 U.S. 146, 153, 155, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004).
Bartlett's purely subjective approach would undermine that precedent by allowing even doubtful retaliatory arrest suits to proceed based solely on allegations about an arresting officer's mental state. See Lozman, 585 U.S., at ----, 138 S.Ct., at 1953. Because a state of mind is "easy to allege and hard to disprove," Crawford-El, 523 U.S. at 585, 118 S.Ct. 1584, a subjective inquiry would threaten to set off "broad-ranging discovery" in which "there often is no clear end to the relevant evidence," Harlow, 457 U.S. at 817, 102 S.Ct. 2727. As a result, policing certain events like an unruly protest would pose overwhelming litigation risks. Any inartful turn of phrase or perceived slight during a legitimate arrest could land an officer in years of litigation. Bartlett's standard would thus "dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties." Gregoire v. Biddle, 177 F. 2d 579, 581 (C.A.2 1949) (Learned Hand, C.J.). It would also compromise evenhanded application of the law by making the constitutionality of an arrest "vary from place to place and from time to time" depending on the personal motives of individual officers. Devenpeck, 543 U.S. at 154, 125 S.Ct. 588. Yet another "predictable consequence" of such a rule is that officers would simply minimize their communication during arrests to avoid having their words scrutinized for hints of improper motive-a result that would leave everyone worse off. Id., at 155, 125 S.Ct. 588.
Adopting Hartman's no-probable-cause rule in this closely related context addresses those familiar concerns. Absent such a showing, a retaliatory arrest claim fails. But if the plaintiff establishes the absence of probable cause, "then the Mt. Healthy test governs: The plaintiff must show that the retaliation was a substantial or motivating factor behind the [arrest], and, if that showing is made, the defendant can prevail only by showing that the [arrest] would have been initiated without respect to retaliation." Lozman, 585 U.S., at ----, 138 S.Ct., at 1952-1953 (citing Hartman, 547 U.S. at 265-266, 126 S.Ct. 1695 ).
C
Our conclusion is confirmed by the common law approach to similar tort claims. When defining the contours of a claim under § 1983, we look to "common-law principles that were well settled at the time of its enactment." Kalina v. Fletcher, 522 U.S. 118, 123, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997) ; Manuelv.Joliet, 580 U.S. ----, ----, 137 S.Ct. 911, 1920-1921, 197 L.Ed.2d 312 (2017) (common law principles "guide" the definition of claims under § 1983 ).
As the parties acknowledge, when § 1983 was enacted in 1871, there was no common law tort for retaliatory arrest based on protected speech. See Brief for Petitioners 43; Brief for Respondent 20. We therefore turn to the common law torts that provide the "closest analogy" to retaliatory arrest claims. Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The parties dispute whether the better analog is false imprisonment or malicious prosecution. At common law, false imprisonment arose from a "detention without legal process," whereas malicious prosecution was marked "by wrongful institution of legal process." Wallace v. Kato, 549 U.S. 384, 389-390, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). Here, both claims suggest the same result: The presence of probable cause should generally defeat a First Amendment retaliatory arrest claim. See generally Lozman, 585 U.S., at ---- -
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Answer:
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songer_direct1
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal in suits against management, for union, individual worker, or government in suit against management; in government enforcement of labor laws, for the federal government or the validity of federal regulations; in Executive branch vs union or workers, for executive branch; in worker vs union (non-civil rights), for union; in conflicts between rival union, for union which opposed by management and "not ascertained" if neither union supported by management or if unclear; in injured workers or consumers vs management, against management; in other labor issues, for economic underdog if no civil rights issue is present; for support of person claiming denial of civil rights. 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.
CARRUTHERS READY-MIX, INC., Plaintiff-Appellee, v. CEMENT MASONS LOCAL UNION NO. 520, et al., Defendants-Appellants.
No. 83-5465.
United States Court of Appeals, Sixth Circuit.
Argued July 16, 1985.
Decided Dec. 18, 1985.
Rehearing and Rehearing En Banc Denied Feb. 19,1986.
Tim Edwards, Gerber, Gerber & Agee, Deborah Godwin argued, Memphis, Tenn., for defendants-appellants.
Joe D. Pegram (Lead) argued, Oxford, Miss., Larry S. Bush, Law School, University, Miss., for plaintiff-appellee.
Before JONES and CONTIE, Circuit Judges; and EDWARDS, Senior Circuit Judge.
CONTIE, Circuit Judge.
Cement Masons Local Union No. 521 appeals an order of the district court denying its motion to dismiss several claims of plaintiff Carruthers Ready-Mix, Inc.’s complaint pursuant to 29 U.S.C. § 187 in this interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The district court determined that 29 U.S.C. § 160(b) supplied the proper limitation period via DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), but applied a ten-year state limitation period, Tenn.Code Ann. § 28-3-110, on the ground that the DelCostello rule should not be applied retroactively in § 303 actions (29 U.S.C. § 187). Finding neither 29 U.S.C. § 160(b) nor the ten-year state period appropriate, we reverse.
I.
On April 22, 1980, Carruthers filed a complaint against Cement Masons. The complaint, filed pursuant to 29 U.S.C. § 187, arose out of Carruthers’ work as a subcontractor to provide ready-mix cement to general contractors on construction projects. Carruthers alleges that Cement Masons then engaged in strikes against the general contractors to discourage the general contractor from dealing with Carruth-ers. Thirteen counts (1, 2, 3, 4, 5, 6, 8, 10, 12, 14, 16, 18, 20), premised on the federal cause of action provided by 29 U.S.C. § 187, alleged that Cement Masons’ actions constituted unfair labor practices in violation of 29 U.S.C. § 158(b)(4). Seven counts (7, 9, 11, 13, 15, 17, 19) alleged that the same actions constituted a violation of Tennessee statutory law, Tenn.Code Ann. § 47-15-113 (now § 47-50-109). Count 21 alleged, with respect to all the counts, tor-tious interference with business in violation of state common law. Of the thirteen federal claims, only count 20 was filed within six months of the acts alleged in the complaint. Six counts (10, 12, 14, 16, 18, 20) were filed within one year of the acts in question, and all counts were filed within two years of the alleged acts. As damages Carruthers sought lost profits and lost goodwill. On October 15, 1980, the district court dismissed the state law claims on the ground that they were preempted by federal law.
On March 1,1982, Cement Masons filed a motion to dismiss which the district court denied on August 6, finding that Tenn.Code Ann. § 28-3-110, a ten-year statute of limitations, applied. Another motion to dismiss was filed on October 8, 1982, and granted on February 24, 1983 with respect to all counts except count 20. The court applied the six-month limitation period provided by 29 U.S.C. § 160(b) and found that “[t]he language of section 303 mandates application of the limitations placed on section 301 actions to section 303 actions.” On March 2, 1983, plaintiff Carruthers moved for reconsideration, and, on April 8, 1983, the court reinstated the dismissed counts on the ground that, although the six-month limitation period applied to § 303 actions, the limitation would not be applied retroactively. Therefore, all counts were timely under the ten-year period. On July 20, 1983, we granted the petition for permission to appeal. 28 U.S.C. § 1292(b).
II.
“When Congress has not established a time limitation for a federal cause of action, the settled practice has been to adopt a local time limitation as federal law if it is not inconsistent with federal law or policy to do so.” Wilson v. Garcia, — U.S.-, 105 S.Ct. 1938, 1942, 85 L.Ed.2d 254 (1985) (footnote omitted) (applying 42 U.S.C. § 1988); United Automobile Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 703-04, 86 S.Ct. 1107, 1111-12, 16 L.Ed.2d 192 (1966). See DelCostello, 462 U.S. at 158, 103 S.Ct. at 2287. “By adopting the statute governing an analogous cause of action under state law, federal law incorporates the State’s judgment on the proper balance between the policies of repose and the substantive policies of enforcement embodied in the state cause of action.” Wilson, 105 S.Ct. at 1945. In following this analysis, “we must characterize the éssence of the claim in the pending case, and decide which state statute provides the most appropriate limiting principle.” Wilson, 105 S.Ct. at 1943. “The characterization of ... [plaintiff’s claim] for statute of limitations purposes is derived from the elements of the cause of action and Congress’ purpose in providing it. These, of course, are matters of federal law.” Id. at 1943-44; DelCostello, 462 U.S. at 159 n. 13, 103 S.Ct. at 2287 n. 13; United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 60-61, 101 S.Ct. 1559, 1562-63, 67 L.Ed.2d 732 (1981) (how an action is characterized “depends upon an examination of the nature of the federal claim and the federal policies involved.”); Hoosier Cardinal Corp., 383 U.S. at 706, 86 S.Ct. at 1113. However, “there is no reason to reject the characterization that state law would impose unless that characterization is unreasonable or otherwise inconsistent with national labor policy.” Id.; Headrick v. American District Telegraph Co., 526 F.Supp. 604, 606 (E.D.Tenn.1980). But this deference is “a matter of preference or comity — not obligation.” Wilson, 105 S.Ct. at 1944 n. 22. Accordingly, we examine the cause of action created by section 303 and potentially analogous state law actions.
A.
29 U.S.C. § 187 provides:
(a) It shall be unlawful, for the purpose of this section only, in an industry or activity affecting commerce, for any labor organization to engage in any activity or conduct defined as an unfair labor practice in section 158(b)(4) of this title.
(b) Whoever shall be injured in his business or property by reason or any violation of subsection (a) of this section may sue therefor in any district court of the United States subject to the limitations and provisions of section 185 of this title without respect to the amount in controversy, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the cost of the suit.
In this case, Carruthers alleges a violation of 29 U.S.C. § 158(b)(4) which provides in pertinent part:
It shall be an unfair labor practice for a labor organization or its agents—
(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in 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.
Section 8(b)(4)
makes it unlawful for a union to pressure neutral employees or employers where “an object thereof” is to cause a person or enterprise to cease doing business with the primary employer with whom the union has a dispute_ Section 8(b)(4) is thus designed to balance the dual congressional objectives of “preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own.” NLRB v. Denver Bldg. & Constr. Trades Council, 341 U.S. 675, 692, 71 S.Ct. 943, 953, 95 L.Ed. 1284.
Local Union No. 501, IBEW v. NLRB, 756 F.2d 888, 892 (D.C.Cir.1985). “[Ujnion conduct violates section 8(b)(4) if any object of that activity is to exert improper influence on secondary or neutral parties.... The ultimate inquiry focuses on the intent of the union, not the effects of its actions.” Id.; NLRB v. Local 58, IBEW, 638 F.2d 36, 37 (6th Cir.1981); Texas Distributors, Inc. v. Local Union No. 100, United Ass’n of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, 598 F.2d 393, 398 (5th Cir.1979); NLRB v. Local 38, IBEW, 339 F.2d 197, 200 (6th Cir.1964); Ohio Valley Carpenters District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO v. NLRB, 339 F.2d 142, 145 (6th Cir.1964). Accordingly, it is clear that union conduct violates § 8(b)(4) and provides an action for damages under § 303 when the union acts with the intent and object of causing a cessation of or interference with business between a neutral party and the primary employer.
Tennessee recognizes both a common law and statutory action based on unlawful inducement of breach of contract. Tenn. Code Ann. § 47-50-109 (previously § 47-15-113) provides in pertinent part:
It shall be unlawful for any person, by inducement, persuasion, misrepresentation, or other means, to induce or procure the breach or violation, refusal or failure to perform any lawful contract by any party thereto.
Whether by statute or common law, this action has seven elements.
1. There must be a legal contract.
2. The wrongdoer must have knowledge of the existence of the contract.
3. There must be an intention to induce its breach.
4. The wrongdoer must have acted maliciously.
5. There must be a breach of the contract.
6. The act complained of must be the proximate cause of the breach of the contract.
7. There must have been damages resulting from the breach of the contract.
Dynamic Motel Management, Inc. v. Erwin, 528 S.W.2d 819, 822 (Tenn.App.1975); Continental Motel Brokers, Inc. v. Blankenship, 739 F.2d 226, 229 (6th Cir.1984). See also Harvey v. Martin, 714 F.2d 650, 652 (6th Cir.1983) (interference with property or contractual rights); First Flight Associates, Inc. v. Professional Golf Co., 527 F.2d 931, 936 (6th Cir.1975); Russell v. Belmont College, 554 F.Supp. 667, 681 (M.D.Tenn.1982) (interference with employment contract and prospective employment); Koehler v. Cummings, 380 F.Supp. 1294, 1305 (M.D.Tenn.1974); Hart v. First National Bank of Memphis, 690 S.W.2d 536, 540 (Tenn.App.1985) (interference with contractual relationship); Love and Amos
Coal Co. v. United Mine Workers, 53 Tenn.App. 37, 378 S.W.2d 430, 438 (1963); Mefford v. City of Dupontonia, 49 Tenn.App. 349, 354 S.W.2d 823, 826 (1961). Further, “[e]very man has the right of property in his own labor, and the right to work without interference; and whoever intentionally interfers with this right is liable in tort for the damage caused....” Large v. Dick, 207 Tenn. 664, 343 S.W.2d 693, 694 (1960); Shell Oil Co. v. State Tire & Oil Co., 126 F.2d 971, 975 (6th Cir.1942); Kayser-Roth Corp. v. Textile Workers Union, 347 F.Supp. 801, 815 (E.D.Tenn.1972), aff'd, 479 F.2d 524 (6th Cir.), cert. denied, 414 U.S. 976, 94 S.Ct. 292, 38 L.Ed.2d 219 (1973); Ladd v. Roane Hosiery, Inc., 556 S.W.2d 758, 760 (Tenn.1977); Schwab v. International Ass’n of Bridge, Structural & Ornamental Iron Workers, AFL-CIO, Local No. 782, 482 S.W.2d 143, 146 (Tenn. App.1972); Lann v. Third National Bank in Nashville, 198 Tenn. 70, 277 S.W.2d 439, 440 (1955).
We find that the Tennessee actions for inducing a breach of contract and interference with business are analogous to the action provided by 29 U.S.C. § 187. We have previously held that actions for wrongful interference with business and actions pursuant to § 303 are merely different grounds to support the same cause of action. Riverside Coal Co. v. United Mine Workers, 410 F.2d 267, 269 (6th Cir.), cert. denied, 369 U.S. 846, 90 S.Ct. 89, 24 L.Ed.2d 95 (1969). “A secondary boycott is both effective and unlawful precisely because it disrupts the business relations of two parties. It is an interference by one party with the contractual relations of two others. Although this is not a perfect analogy to the typical interference claim, generally inducement of breach of contract, it is comfortably close.” Associated Imports, Inc. v. International Longshoremen’s Ass’n, AFL-CIO, 609 F.Supp. 595, 600 (S.D.N.Y.1985). Both the state and federal actions require showings of intent and both provide relief for acts, the object of which is interference with contractual or business relationships. Accordingly, we consider what limitation period a Tennessee court would apply to actions for interference with a business relationship or inducing a breach of contract.
We have held, and Tennessee law confirms, that the three-year limitation period of Tenn.Code Ann. § 28-3-105 applies to common law actions for inducement of breach of contract and unlawful interference with a business. Harvey, 714 F.2d at 652; Edwards v. Travelers Insurance of Hartford, 563 F.2d 105, 122 (6th Cir.1977), citing Vance v. Schulder, 547 S.W.2d 927, 932-33 (Tenn.1977). See also Vance, 547 S.W.2d at 932-33, citing Budget Rent-A-Car of Knoxville, Inc. v. Car Services, Inc., 225 Tenn. 342, 469 S.W.2d 360, 362 (1971); Brown v. Dunstan, 219 Tenn. 291, 409 S.W.2d 365, 367 (1966). The propriety of this holding is enforced by the language of the statute which prescribes the three-year period for “[ajctions for injuries to personal or real property,” and the fact that the right to be free from interference with one’s business arises under Tennessee law from every person’s “right of property in his own labor.” Large, 343 S.W.2d at 694 (emphasis added). “ ‘Property’ includes not merely the right of private use and enjoyment of tangibles, but the intangible right of disposition and sale, and the word in its broader and truer sense includes one’s business, as a thing entitled to protection from unlawful interference.” Sanford-Day Iron Works v. Enterprise Foundry & Machine Co., 138 Tenn. 437, 198 S.W. 258, 259 (1917). Accordingly, we conclude that the three-year period prescribed by § 28-3-105(1) applies to Car-ruthers’ action.
However, in United Mine Workers of America v. Meadow Creek Coal Co., 263 F.2d 52, 62 (6th Cir.), cert. denied, 359 U.S. 1013, 79 S.Ct. 1149, 3 L.Ed.2d 1038 (1959), we held that the ten-year limitations period of Tenn.Code Ann. § 28-3-110 applied to a § 303 action because such an action was a case “not expressly provided for.” In Meadow Creek, we relied on our prior decision in City of Atlanta v. Chattanooga Foundry & Pipeworks, 127 F. 23 (6th Cir.1903), aff'd, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241 (1906). Chattanooga Foundry was an anti-trust case in which the plaintiff, like Carruthers, sought to recover for damages to its “business or property,” paralleling the language of the respective statutes. We held that “this is an action on a statute liability, and that the cause of action does not arise out of any agreement, and that such an action is not barred for ten years.” Id. at 32. The Supreme Court affirmed, holding that “there is a sufficiently clear distinction between injuries to property and ‘injured in his business or property,’ the latter being the language of the act of Congress.” 203 U.S. at 398-99, 27 S.Ct. at 66-67.
We decline to follow Meadow Creek. In Meadow Creek, we relied heavily on the Chattanooga Foundry cases in which the courts focused almost exclusively on the nature of the harm inflicted rather than the reasons that the conduct in question was unlawful as reflected in the elements of the cause of action. While this analysis is clearly consistent with Tennessee law which provides that “the applicable statute of limitations is determined according to the gravamen of the complaint ..., [and] [t]he major criterion in ascertaining the gravamen of an action is the kind of damage alleged,” Prescott v. Adams, 627 S.W.2d 134, 137 (Tenn.App.1981), in apply-
ing state periods of limitation to federal claims, how an action is characterized is a question of federal law which “depends upon an examination of the nature of the federal claim and the federal policies involved.” Mitchell, 451 U.S. at 60-61, 101 S.Ct. at 1562-63; Wilson, 105 S.Ct. at 1943; DelCostello, 462 U.S. at 159, 103 S.Ct. at 2287. Accordingly, the type of injury involved is not dispositive in determining the applicable state limitation period and our decision in Meadow Creek relied too heavily on the type of injury involved. However, the precise elucidation of the rule of Mitchell and Wilson cited above was not available to the Meadow Creek and Chattanooga Foundry courts. Further, the decisions of this court and the Tennessee courts since the decision in Meadow Creek have refined the right of action available to remedy the inducement of a breach of contract or interference with a business, and strengthened the analogy with a § 303 action. An examination of a § 303 action in light of the elements of the claim rather than the type of injury inflicted clarifies the analogy to the Tennessee state claims for inducing a breach of contract and interfering with a business and directs application of the three-year rather than ten-year period.
Accordingly, we hold that the three-year period of § 28-3-105 provides the most appropriate state limitation period for application to Carruthers’ § 303 action. Cement Masons contends, however, that federal law, 29 U.S.C. § 160(b), provides a more appropriate period.
B.
In DelCostello, the Court held that the six-month limitation period of 29 U.S.C. § 160(b), governing unfair labor practices before the NLRB, applied to actions pursuant to 29 U.S.C. § 185 alleging the employer’s breach of a collective-bargaining agreement and the union’s breach of its duty of fair representation. The Court recognized that “state statutes of limitations can be unsatisfactory vehicles for the enforcement of federal law” and that “it may be inappropriate to conclude that Congress would choose to adopt state rules at odds with the purpose or operation of federal substantive law.” 462 U.S. at 161, 103 S.Ct. at 2289. Further, the Court found “no close analogy in ordinary state law,” id. at 165, 103 S.Ct. at 2291, for the hybrid § 301 claim and rejected application of state arbitration statutes because of the poor analogy and brevity of the period provided, typically 30 to 90 days. Id. at 166, 103 S.Ct. at 2291. The Court rejected the analogy to state malpractice statutes, in part on the ground that “application of a longer malpractice statute as against unions would preclude the relatively rapid final resolution of labor disputes favored by federal law.” Id. at 168, 103 S.Ct. at 2292. The Court settled on the six-month period in part to avoid applying different limitations periods to the § 301 hybrid claims, an element not present in the pending case. Id. at 169 n. 19, 103 S.Ct. at 2293 n. 19.
The desirability for national uniformity and the fact that the six-month limitation is contained in the same statute as the § 303 action make'application of DelCostello to the pending case appealing. However, an examination of DelCostello’s reasoning persuades us that the settled rule of resort to state periods of limitation is appropriate in this context. First, as our earlier analysis demonstrates, Tennessee law provides a limitation period for common law state actions which are closely analogous to the § 303 action, unlike DelCostello in which no state limitation period represented a balancing of the unusual combination of interests implicated in a hybrid § 301 action. Second, application of the state limitation period is not inconsistent with the policies underlying federal labor law. Rapid resolution of labor disputes is especially favored when parties to the collective bargaining agreement are involved and breakdown of the collective bargaining process is threatened. No such threat exists in this ease as no labor relationship exists between the parties to this action. See Monarch Long Beach Corp. v. Soft Drink Workers, Local 812, International Brotherhood of Teamsters, 762 F.2d 228, 231 (2d Cir.1985) (four-year period for damages to one’s business caused by actions in restraint of trade); Associated Imports, Inc. v. International Longshoremen’s Ass’n, AFL-CIO, 609 F.Supp. 595, 600-01 (S.D.N.Y. 1985) (“Unlike a § 301 suit, the subject of a § 303 suit is thus not day-to-day shop conduct but past actions which are by definition abnormal. Resolution of the suit does not involve interpretation of the governing bargaining agreement, nor does it involve the grievance or arbitration machinery.”); Park Electric Co. v. IBEW, 593 F.Supp. 1060 (N.D.Ill.1984) (applied five-year period for tortious interference with contract claims); Nashaminy Constructors v. Trades Council, 118 LRRM 2109 (E.D.Pa., May 21, 1984).
Attention to the reasoning of DelCostel-lo and its own express limitations indicate that DelCostello is not a “green light” to apply 29 U.S.C. § 160(b) to all actions in which federal labor law is implicated. The Court's language itself is persuasive.
We stress that our holding today should not be taken as a departure from prior practice in borrowing limitations periods for federal causes of action, in labor law or elsewhere. We do not mean to suggest that federal courts should eschew use of state limitations periods anytime state law fails to provide a perfect analogy.... On the contrary, as the courts have often discovered, there is not always an obvious state-law choice for application to a given federal cause of action; yet resort to state law remains the norm for borrowing of limitations periods.
462 U.S. at 171, 103 S.Ct. at 2294. Accordingly, we follow DelCostello and look to state law for an analogous limitation period. Since all of Carruthers’ claims were filed within the three-year period prescribed by Tenn.Code Ann. § 28-3-105, the district court did not err in refusing to dismiss the claims.
Accordingly, the judgment of the district court is AFFIRMED and the case REMANDED for further proceedings consistent with this opinion.
. Tenn.Code Ann. § 28-3-105 provides:
The following actions shall be commenced within three (3) years from the accruing of the cause of action:
(1) Actions for injuries to personal or real property;
(2) Actions for the detention or conversion of personal property;
(3)Civil actions based upon the alleged violation of any federal or state statute creating monetary liability for personal services rendered, or liquidated damages or other recovery therefor, when no other time of limitation is fixed by the statute creating such liability.
. Tenn.Code Ann. § 28-3-110 provides:
The following shall be commenced within ten (10) years after the cause of action accrued:
(1)Actions against guardians, executors, administrators, sheriffs, clerks, and other public officers on their bonds;
(2) Actions on judgments and decress of courts of record of this or any other state or government; and
(3) All other cases not expressly provided for.
. 29 U.S.C. § 160(b) provides that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board.”
The parties note that § 303(b) makes its grant of jurisdiction "subject to the limitations and provisions of section 185 of this title.” We interpret this to refer to those express limitations regarding jurisdiction, agency, venue, service of process and enforcement of judgments set out in section 185. Since the period of limitation rule of DelCostello is principally a result of the hybrid cause of action which results from the union’s court-created duty of fair representation, it would be disingenuous to infer that Congress intended to apply to a § 303 action the limitation period of an action it could not contemplate. But see Landgrebe Motor Transport, Inc. v. District 72, International Association of Machinists & Aerospace Workers, AFL-CIO, 763 F.2d 241, 244 n. 1 (7th Cir.1985).
. We note that the interests implicated in limitation periods for filing administrative complaints and legal actions are often different. Burnett v. Grattan, 468 U.S. 42, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984). See International Longshoremen’s & Warehousemen’s Union v. Juneau Spruce Corp., 342 U.S. 237, 243-44, 72 S.Ct. 235, 239, 96 L.Ed. 275 (1952).
. Prior to DelCostello, state limitation periods were generally applied to § 303 actions. Consolidated Express, Inc. v. New York Shipping Ass'n, 602 F.2d 494, 507-08 (3d Cir.1979), vacated, 448 U.S. 902, 100 S.Ct. 3040, 65 L.Ed.2d 1131 (1980); Fruit and Vegetable Packers and Warehousemen Local 760 v. Morley, 378 F.2d 738, 745-46 (9th Cir.1967); Falsetti v. Local Union No. 2026, UMW, 249 F.Supp. 970, 972 (W.D.Pa. 1965). But see Fulton v. Plumbers and Steamfitters, 695 F.2d 402, 405-06 n. 5 (9th Cir.1982), cert. denied, 464 U.S. 913, 104 S.Ct. 273, 78 L.Ed.2d 254 (1983); Falsetti v. Local Union No. 2026, UMW, 355 F.2d 658, 662 (3d Cir.1966); International Union of Operating Engineers v. Fischbach and Moore, 350 F.2d 936, 937-38 (9th Cir.1965); Fischbach and Moore v. International Union of Operating Engineers, 198 F.Supp. 911 (S.D.Cal.1961).
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
Harold ADLER and Vera Adler, d/b/a Adler Construction Company, and Continental Casualty Company, Appellants, v. UNITED STATES of America, for the Use and Benefit of the General Tire & Rubber Company, a Corporation, Appellee.
No. 16171.
United States Court of Appeals Eighth Circuit.
Oct. 14, 1959.
Joseph M. Butler, Rapid City, S. D. (Bangs, McCullen & Butler, Rapid City, S. D., were with him on the brief), for appellants.
Harold R. Hanley, Rapid City, S. D. (Hanley, Costello & Porter, Rapid City, S. D., were with him on the brief), for appellee.
Before SANBORN, VAN OOSTER-HOUT and MATTHES, Circuit Judges.
MATTHES, Circuit Judge.
This action, based on Title 40 U.S.C.A. §§ 270a-270d, known as the Miller Act, was brought by the United States of America for the use and benefit of the General Tire & Rubber Company, a corporation, appellee herein (sometimes referred to as “plaintiff”), against appellants here, Harold Adler and Vera Adler, d/b/a Adler Construction Company, and Continental Casualty Company, surety on the payment bond furnished by the Adlers. (Unless otherwise indicated, the appellants will be referred to collectively as “defendants.”) Since the events giving rise to this action primarily concern the tire company and the defendant, Mr. Adler, for the purpose of clarity, we shall refer to them respectively as “General” and “Adler.”
The purpose of the suit was to recover the sum of two promissory notes executed by the Adlers on January 27, 1956, in the face amount of $6,000 each, less a credit of $65.55, plus interest, attorney fees and costs. The notes were given in payment for tires purchased from General. There was no issue made as to the liability of the defendants for the amount sued for, and, pursuant to the court’s instructions, the jury found for plaintiff on its complaint, and in due course, judgment was rendered in favor of plaintiff and against the defendants for $11,934.-45, with interest and costs. That part of the court’s judgment is not in question here.
The jury also awarded the Adlers $12,-750 on their counterclaim, based on breach of warranty, the allegations of which will receive additional attention in the course of this opinion. The court sustained plaintiff’s after-trial motion for judgment notwithstanding the verdict on defendants’ counterclaim, and rendered judgment for plaintiff thereon. This appeal brings into focus the propriety of the court’s action in that respect.
The trial court sustained the motion for judgment notwithstanding the verdict on the counterclaim for these reasons, which received exhaustive attention in the memorandum opinion of the trial court:
(1) That the notice of the claimed breach of the warranty, as required by § 54.0149 of the South Dakota Code (1939) was not timely given.
(2) That the oral statement by General’s representative in January, 1954, did not constitute an express warranty as defined by § 54.0112 of the South Dakota Code (1939), but was merely “dealer’s talk,” “puffing” or “opinion,” and that the Adlers had not relied on such representations.
(3) That the evidence failed to show breach of the alleged warranty.
(4) That the evidence with respect to damages allegedly sustained was wholly inadequate, did not prove the damages with reasonable certainty, and the jury was required to resort to speculation and conjecture in arriving at damages claimed by the Adlers.
From the voluminous record before us, the evidence may be summarized as affording proof of these pertinent facts: Adler and his wife, as a partnership, were engaged in the heavy construction business, and in November, 1952, the Adler Company commenced work on the Pactóla Dam Project in South Dakota. At that time and until about the middle of March, 1954, the Adlers were using rayon tires, manufactured by General, on their heavy construction equipment. In January, 1954, Adler had a conversation with a representative of General relative to changing from rayon to “Nygen” (nylon fabric) tires. In effect, Adler testified that on this occasion, General’s representative stated that its Nygens were very durable tires; that they were more cut resistant and would have double the life of its rayon tires; that the price of Nygens would be 25% more than the rayons, but because Nygens would give twice the wear, they would still be a good buy. The evidence establishes that after that conversation, and in the early part of 1954, the Adlers began purchasing General’s Nygen tires in three large sizes, and, continuing through 1955, a total of 124 Nygens were purchased for use on the Pactóla project. After January 1, 1956, the Adlers purchased tires from another concern.
All of the Nygen tires in question were covered by General’s “Standard Warranty for All Tires and Tubes," which provided :
“Every tire and tube of our manufacture, bearing our name and serial number, is guaranteed to be free from defects in workmanship and material, without limit as to time or mileage. If our examination shows said tire or tube has failed under the terms of this guarantee, we will either repair it or make a reasonable allowance on the purchase of a new tire or tube.”
Sometime during the early spring of 1955, Adler began to complain about defects in the tires. It appears without dispute that adjustments were made by General on individual Nygen tires under the standard warranty, and these adjustments were accepted by Adler. Exhibits prepared by Adler show that these adjustments, made from April, 1955, through the latter part of September, 1956, totalled $6,669.55. .
The tires were sold to the Adlers on open account and in January, 1956, they were indebted to General in the approximate amount of “thirty-one thousand five or six hundred dollars.” General was pressing them for payment, and an arrangement was agreed upon whereby the Adlers, on January 27, 1956, executed five promissory notes for $6,000 each, the first being payable in February, 1956, the others in succeeding months through June 15,1956. Three of these notes were paid, the last payment being made, according to Adler, on August 15, 1956. As heretofore stated, plaintiff’s action was based upon the remaining two notes which were not paid. In addition to the notes totalling $30,000, the Adlers were also indebted to General on an open account in the amount of something over $1,000, and in September, 1956, an adjustment was made by General on seven additional tires under the standard warranty, whereby the Adlers received a credit of $1,177, which wiped out the balance due from them on this open account.
Defendants’ counterclaim set up the standard warranty, a claimed warranty regarding “recap” value, and alleged that General had refused to make proper adjustments. The counterclaim further alleged that the adjustments due were in excess of $46,989, and prayed recovery against General in that amount. However, during the trial, which commenced on September 10, 1958, it was developed that the Adlers were seeking recovery on the counterclaim on the theory that the statement made by General’s representative in January, 1954, which in substance was that General’s Nygens were twice as durable, more cut resistant and would have double the life of rayon tires, constituted an express warranty; that the Adlers relied upon this warranty, and that there was a breach thereof, resulting in damages in the amount prayed for in the counterclaim.
South Dakota is one of the 35 states which has adopted the Uniform Sales Act. See Uniform Laws Annotated, 1 U.L.A. Sales, 1958 Cumulative Annual Pocket Part. Section 54.0149 of the South Dakota Code (1939), which is identical to § 49 of the Uniform Sales Act, provides :
“In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if after acceptance of the goods, the buyer fail 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.”
Assuming, arguendo, that an express warranty came into existence as the result of the statement made by General’s representative in January, 1954; that the Adlers relied thereon, and that there was a breach thereof, they were still under a duty to comply with the notice requirement contained in the foregoing section in order to sustain their claim for damages for breach of such warranty. In the recent case of Vander Eyk v. Bones, S.D., 91 N.W.2d 897, the Supreme Court of South Dakota in adressing itself to SDC 54.0149, reiterated the points made in Jan Ree Frocks, Inc. v. Pred, 68 S.D. 356, 2 N. W.2d 696, 697, stating, 91 N.W.2d at page 901: “The purchaser has neither a right of action for the breach of a promise or warranty nor a defense for the purchase price, unless the required notice has been given (citing authorities). The giving of such notice must be pleaded and proved by the purchaser seeking to recover or defend for the breach of warranty. [Citing among others the case of Truslow & Fulle, Inc. v. Diamond Bottling Corp., 112 Conn. 181, 151 A. 492, 71 A.L.R. 1142].”
While the Supreme Court of South Dakota has not expressly ruled on the purpose of the notice, it dealt with the form, scope and sufficiency thereof in Gilger v. Montgomery Lumber Co., 73 S.D. 599, 47 N.W.2d 281, 282, in this language:
“SDC 54.0149 is Section 49 of the Uniform Sales Act. Construing this section the courts have generally held, as stated in 46 Am.Jur., Sales, Sec. 257: 'Notice of breach of contract which a statute requires a buyer to give the seller in order to hold him liable after acceptance need take no special form. It seems clear that it must refer to particular sales, so far as that is practicable; that it must at least fairly advise the seller of the alleged defects; and that it must be such as to repel the inference of waiver.’ ” (Emphasis supplied.)
See, also, and compare, Wildman Mfg. Co. v. Davenport Hosiery Mills, 147 Term. 551, 249 S.W. 984; Lieberman v. W. M. Gulliksen Mfg. Co., 332 Mass. 439, 125 N.E.2d 396, 398, 53 A.L.R.2d 266; Nashua River Paper Co. v. Lindsay, 249 Mass. 365, 144 N.E. 224, 225; Howard v. Lowell Coca-Cola Bottling Co., 322 Mass. 456, 78 N.E.2d 7, 10; Hazelton v. First Nat. Stores, 88 N.H. 409, 190 A. 280, 283; Henderson Tire & Rubber Co. v. P. K. Wilson & Son [Court of Appeals of N. Y.], 235 N.Y. 489, 139 N.E. 583 (complaints of inferior quality not sufficient); and Schaefer v. Weber, 265 Wis. 160, 60 N.W.2d 696.
Defendants vigorously insist that the evidence furnishes sufficient proof to create a jury issue on the question of notice. In particular, they rely upon the testimony of Adler to the effect that on July 27, 1955, he had a conversation with representatives of General in which Adler stated, in substance, that about two months earlier he had informed General’s Denver office that “we were having too much difficulty with the Ny-gen tires. We advised them that the durability simply wasn’t there.” Adler also testified that although the first Ny-gen tires were purchased in March, 1954, the tires were not in service long enough until late spring, 1955, “to realize all of the difficulties that we were encountering.”
We recognize that the question of the sufficiency of the notice ordinarily presents a factual issue, properly to be determined by a jury; however, where all of the evidence is such as to compel reasonable men to reach only one conclusion, the question is one of law. See, Vander Eyk v. Bones, S.D., 91 N.W.2d 897; Jan Ree Frocks, Inc. v. Pred, 68 S.D. 356, 2 N.W.2d 696, 697; Truslow & Fulle, Inc. v. Diamond Bottling Corporation, 112 Conn. 181, 151 A. 492, 71 A.L.R. 1142, and see Annotation 71 A.L.R. 1149.
It must be remembered that transactions between General and the Adlers relative to Nygen tires extended over a period of more than two years, and that for approximately 18 months adjustments under the standard written warranty were made. In this situation, the overall picture must be viewed if we are to arrive at a proper interpretation of the July, 1955, conversation. Application of this guide demonstrates beyond dispute that the acts and conduct of the Adlers from the spring of 1955 through September, 1956, considered collectively, are destructively inconsistent with the contention that the Adlers were relying upon the express warranty in their numerous dealings with General. In addition to the existence of the standard written tire warranty, which we consider an important factor, we have these additional circumstances: adjustments were made under such warranty as late as September, 1956; the continued purchase by the Adlers of Nygen tires after they claim they discovered the lack of durability; the execution by the Adlers of notes for $30,000 in January, 1956, representing practically the entire amount of their indebtedness to General; payment by the Adlers of three of the five notes; the warranty relied upon on this appeal was not asserted as a basis for their counterclaim filed more than two years after the Adlers now claim they knew the express warranty was breached; Adler’s failure to assert reliance on the claimed oral warranty in the pre-trial examination or deposition, taken April 30, 1956.
Consideration of the notice said to be encompassed in the July, 1955, conversation, in light of the foregoing impelling circumstances, compels these conclusions : (1) Adler was not at that time relying upon breach of the express warranty; (2) such notice was by no means sufficient to repel the inference of waiver of such breach; (3) as the trial court found, all that can reasonably be inferred from said conversation is that Adler was dissatisfied with the adjustments received under the standard tire warranty.
Left for determination is whether the notice given by Adler on September 27, 1956, was sufficient and timely. On that day, which was a few days after the final inspection, adjustments and credits had been made, Adler had a telephone conversation with Mr. Larson, General’s representative, which, according to Adler, was to this effect:
“Mr. Larson again asked me what I was going to do about the balance due on the note. I advised him that we were dissatisfied with the adjustments that had been received previously, and, likewise, very much dissatisfied with the small adjustments just recently received. I advised him that in their original dealings the Nylons were supposed to be twice as durable, twice the tire life and subject to further recapping due to nygen cord and that we had not received that type of life. I asked him whether he had any idea of what the actual cost of carcasses was. I further advised him that we would not, under any condition, borrow funds from the bank in order to pay off the disputed account upon which there were many adjustments due; and the adjustments at this time were in excess of our balance due on our so-called notes.”
The trial court held that the foregoing was the first sufficient notice that the tires did not meet the requirements of the “claimed oral warranty,” and held, as a matter of law, that this notice was not given within a reasonable time within the contemplation of the South Dakota statute. Assuming that Adler’s September 27, 1956, conversation constituted a notice of breach of the “double life” warranty, clearly this notice was not given “within a reasonable time after the buyer knows, or ought to know of such breach, * * *From Adler’s own testimony, we learn that he began to experience “difficulty” with the Ny-gen tires in the spring of 1955, — yet more than a year elapsed before any semblance of a proper notice was given. The South Dakota Supreme Court has ruled that the question of what is a reasonable time under the statute may be one of law. See Vander Eyk v. Bones, S.D., 91 N.W.2d 897, 901 (knowledge of breach in August, 1955; no notice until February, 23, 1956; held as & matter of law that notice was not given-with reasonable promptness) and cf. Jan Ree Frocks, Inc. v. Pred, 68 S.D. 356, 2, N.W.2d 696. See also, Schaefer v. Weber, 265 Wis. 160, 60 N.W.2d 696, 699;. Hazelton v. First Nat. Stores, 88 N.H. 409, 190 A. 280, 283; American Mfg. Co. v. United States Shipping Board E. F. Corp., 2 Cir., 7 F.2d 565; Annotation 41 A.L.R.2d 812; and cf. Victorson v. Albert M. Green Hosiery Mills, Inc., 3 Cir.,. 202 F.2d 717, 41 A.L.R.2d 806; Truslow & Fulle, Inc. v. Diamond Bottling Corp.,. 112 Conn. 181, 151 A. 492, 71 A.L.R. 1142.
The teachings of the foregoing cases compel us to hold that the evidence was insufficient to create a jury issue on the question of the timeliness of the notice.
The judgment appealed from 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:
|
sc_caseorigin
|
113
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
MORALES, ATTORNEY GENERAL OF TEXAS v. TRANS WORLD AIRLINES, INC., et al.
No. 90-1604.
Argued March 3, 1992
Decided June 1, 1992
Scalia, J., delivered the opinion of the Court, in which White, O’Con-nor, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, in which Rehnquist, C. J., and Blackmun, J., joined, post, p. 419. Souter, J., took no part in the consideration or decision of the case.
Stephen Gardner, Assistant Attorney General of Texas, argued the cause for petitioner. With him on the briefs were Dan Morales, Attorney General of Texas, pro se, Will Pryor, First Assistant Attorney General, and Mary F. Keller, Deputy Attorney General.
Keith A. Jones argued the cause for respondents. With him on the brief for respondent airlines were David Wilks Corban, Andrew C. Freedman, and Ronald D. Secrest. A brief for 31 State Attorneys General, respondents under this Court’s Rule 12.4, in support of petitioner was filed by Daniel E. Lungren, Attorney General of California, Roderick E. Walston, Chief Assistant Attorney General, Herschel T. Elk-ins, Senior Assistant Attorney General, and Albert Norman Sheldon, Deputy Attorney General, Scott Harshbarger, Attorney General of Massachusetts, and Ernest L. Samson, Jr., Assistant Attorney General, Hubert H. Humphrey III, Attorney General of Minnesota, and David Woodward, Special Assistant Attorney General, Robert Abrams, Attorney General of New York, and Ronna D. Brown and Andrea C. Levine, Assistant Attorneys General, Charles Cole, Attorney General of Alaska, and James Forbes, Assistant Attorney General, Grant Woods, Attorney General of Arizona, and Carmen D. Claudio, Assistant Attorney General, Gale A. Norton, Attorney General of Colorado, and Garth C. Lucero, First Assistant Attorney General, Richard Blumenthal, Attorney General of Connecticut, and Robert M. Langer, Assistant Attorney General, Robert A. Butterworth, Attorney General of Florida, and Richard F. Scott, Assistant Attorney General, Larry EchoHawk, Attorney General of Idaho, and Brett T Delange, Deputy Attorney General, Roland W Burris, Attorney General of Illinois, and Deborah Hagen, Assistant Attorney General, Bonnie J. Campbell, Attorney General of Iowa, and Steve St. Clair, Assistant Attorney General, Robert T. Stephan, Attorney General of Kansas, and Dan Kolditz, Deputy Attorney General, J. Joseph Curran, Jr., Attorney General of Maryland, and Vincent Demarco, Assistant Attorney General, Frank J. Kelley, Attorney General of Michigan, and Frederick H. Hoffecker, Assistant Attorney General, William L. Webster, Attorney General of Missouri, and Clayton S. Friedman, Assistant Attorney General, Don Stenberg, Attorney General of Nebraska, and Paul N. Potadle, Assistant Attorney General, Frankie Sue Del Papa, Attorney General of Nevada, and Philip R. Byrnes, Deputy Attorney General, Lacy H. Thornburg, Attorney General of North Carolina, and K. D. Sturgis, Assistant Attorney General, Nicholas J. Spaeth, Attorney General of North Dakota, and David W. Huey, Assistant Attorney General, Lee Fisher, Attorney General of Ohio, and Mark T. D’Alessandro, Assistant Attorney General, Susan B. Loving, Attorney General of Oklahoma, and Jane F Wheeler, Assistant Attorney General, Charles Crookham, Attorney General of Oregon, Virginia Linder, Solicitor General, and Michael Reynolds, Assistant Attorney General, James E. O’Neil, Attorney General of Rhode Island, and Terrance Hassett and Lee Baker, Special Assistant Attorneys General, Mark W. Barnett, Attorney General of South Dakota, and Jeffrey P. Hallem, Assistant Attorney General, Charles W. Burson, Attorney General of Tennessee, and Charlotte H. Rappuhn, Assistant Attorney General, Jeffrey L. Amestoy, Attorney General of Vermont, and J Wallace Malley, Jr., Assistant Attorney General, Kenneth O. Eikenberry, Attorney General of Washington, and Robert F. Manifold, Assistant Attorney General, Mario J. Palumbo, Attorney General of West Virginia, and Don Darling, Deputy Attorney General, James E. Doyle, Attorney General of Wisconsin, and James D. Jeffries and Barbara Tuerkheimer, Assistant Attorneys General, and Joseph B. Meyer, Attorney General of Wyoming, and Mark Moran, Assistant Attorney General.
Stephen L. Nightingale argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Roberts, Assistant Attorney General Gerson, Robert V. Zener, Robert D. Ka-menshine, and Arthur J. Rothkopf.
Briefs of amici curiae urging reversal were filed for the State of Hawaii et al. by Warren Price III, Attorney General of Hawaii, and Girard D. Lau and Steven S. Michaels, Deputy Attorneys General, and by the Attorneys General for their respective States as follows: James H. Evans of Alabama, Linley E. Pearson of Indiana, Richard P. Ieyoub of Louisiana, Mike Moore of Mississippi, Robert J. Del Tufo of New Jersey, Tom Üdall of New Mexico, Ernest Preate, Jr., of Pennsylvania, Paul Van Dam of Utah, and Mary Sue Terry of Virginia; and for the Public Citizen and Aviation Consumer Action Project by Cornish F. Hitchcock and Alan B. Morrison.
Briefs of amici curiae urging affirmance were filed for American Airlines, Inc., by Steven C. McCracken and Jane G. Allen; for the American Association of Advertising Agencies, Inc., by David S. Versfelt and Valerie L. Schulte; and for the Association of National Advertisers, Inc., by Burt Neuborne and Gilbert H. Weil.
Justice & alia
delivered the opinion of the Court.
The issue in this case is whether the Airline Deregulation Act of 1978, 49 U. S. C. App. § 1301 et seq., pre-empts the States from prohibiting allegedly deceptive airline fare advertisements through enforcement of their general consumer protection statutes.
I
Prior to 1978, the Federal Aviation Act of 1958 (FAA), 72 Stat. 731, as amended, 49 U. S. C. App. § 1301 et seq., gave the Civil Aeronautics Board (CAB) authority to regulate interstate airfares and to take administrative action against certain deceptive trade practices. It did not, however, expressly pre-empt state regulation, and contained a “saving clause” providing that “[n]othing... in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.” 49 U. S. C. App. § 1506. As a result, the States were able to regulate intrastate airfares (including those offered by interstate air carriers), see, e. g., California v. CAB, 189 U. S. App. D. C. 176, 178, 581 F. 2d 954, 956 (1978), cert. denied, 439 U. S. 1068 (1979), and to enforce their own laws against deceptive trade practices, see Nader v. Allegheny Airlines, Inc., 426 U. S. 290, 300 (1976).
In 1978, however, Congress, determining that “maximum reliance on competitive market forces” would best further “efficiency, innovation, and low prices” as well as “variety [and] quality... of air transportation services,” enacted the Airline Deregulation Act (ADA). 49 U. S. C. App. §§ 1302(a)(4), 1302(a)(9). To ensure that the States would not undo federal deregulation with regulation of their own, the ADA included a pre-emption provision, prohibiting the States from enforcing any law “relating to rates, routes, or services” of any air carrier. § 1305(a)(1). The ADA retained the CAB’s previous enforcement authority regarding deceptive trade practices (which was transferred to the Department of Transportation (DOT) when the CAB was abolished in 1985), and it also did not repeal or alter the saving clause in the prior law.
In 1987, the National Association of Attorneys General (NAAG), an organization whose membership includes the attorneys general of all 50 States, various Territories, and the District of Columbia, adopted Air Travel Industry Enforcement Guidelines (set forth in an Appendix to this opinion) containing detailed standards governing the content and format of airline advertising, the awarding of premiums to regular customers (so-called “frequent flyers”), and the payment of compensation to passengers who voluntarily yield their seats on overbooked flights. These guidelines do not purport to “create any new laws or regulations” applying to the airline industry; rather, they claim to “explain in detail how existing state laws apply to air fare advertising and frequent flyer programs.” NAAG Guidelines, Introduction (1988).
Despite objections to the guidelines by the DOT and the Federal Trade Commission (FTC) on pre-emption and policy grounds, the attorneys general of seven States, including petitioner’s predecessor as attorney general of Texas, sent a memorandum to the major airlines announcing that “it has come to our attention that although most airlines are making a concerted effort to bring their advertisements into compliance with the standards delineated in the... guidelines for fare advertising, many carriers are still [not disclosing all surcharges]” in violation of §2.5 of the guidelines. The memorandum said it was the signatories’ “purpose.... to clarify for the industry as a whole that [this practice] is a violation of our respective state laws on deceptive advertising and trade practices”; warned that this was an “advisory memorandum before [the] initiation of] any immediate enforcement actions”; and expressed the hope that “protracted litigation over this issue will not be necessary and that airlines will discontinue the practice... immediately.” Memorandum from Attorneys General of Colorado, Kansas, Massachusetts, Missouri, New York, Texas, and Wisconsin, dated February 3, 1988 (Exhibit A to Exhibit H to Motion for Temporary Restraining Order), App. 123a, 125a. Several months later, petitioner’s office sent letters to several respondents serving /‘as formal notice[s] of intent to sue.” Letter from Assistant Attorney General of Texas, dated November 14, 1988, App. 115a.
Those respondents then filed suit in Federal District Court claiming that state regulation of fare advertisements is preempted by § 1305(a)(1); seeking a declaratory judgment that, inter alia, § 2.5 of the guidelines is pre-empted; and requesting an injunction restraining Texas from taking any action under its law in conjunction with the guidelines that would regulate respondents’ rates, routes, or services, or their advertising and marketing of the same. The District Court entered a preliminary injunction to that effect, determining that respondents were likely to prevail on their pre-emption claim. Trans World Airlines, Inc. v. Mattox, 712 F. Supp. 99, 101-102 (WD Tex. 1989). (It subsequently extended that injunction to 33 other States, id., at 105-106; the propriety of that extension is not before us.) The Court of Appeals affirmed. Trans World Airlines, Inc. v. Mattox, 897 F. 2d 773, 783-784 (CA5 1990). Subsequently, the District Court, in an unreported order, permanently enjoined the States from taking “any enforcement action” which would restrict “any aspect” of respondents’ fare advertising or operations relating to rates, routes, or services. The Court of Appeals once again affirmed. 949 F. 2d 141 (CA5 1991). We granted certiorari. 502 U. S. 976 (1991).
HH HH
Before discussing whether § 1305(a)(1) pre-empts state enforcement of the challenged guidelines, we first consider whether, assuming that it does, the District Court could properly award respondents injunctive relief. It is a “ ‘basic doctrine of equity jurisprudence that courts of equity should not act... when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.’ ” O’Shea v. Littleton, 414 U. S. 488, 499 (1974); Younger v. Harris, 401 U. S. 37, 43-44 (1971). In Ex parte Young, 209 U. S. 123, 156 (1908), we held that this doctrine does not prevent federal courts from enjoining state officers “who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution.” When enforcement actions are imminent — and at least when repetitive penalties attach to continuing or repeated violations and the moving party lacks the realistic option of violating the law once and raising its federal defenses — there is no adequate remedy at law. See id., at 145-147, 163-165.
We think Young establishes that injunctive relief was available here. As we have described, the attorneys general of seven States, including petitioner’s predecessor, had made clear that they would seek to enforce the challenged portions of the guidelines (those concerning fare advertising) through suits under their respective state laws. And Texas law, at least, imposes additional liability (by way of civil penalties and consumer treble-damages actions) for multiple violations. See Tex. Bus. & Com. Code Ann. §§ 17.47,17.50 (1987 and Supp. 1991-1992). Like the plaintiff in Young, then, respondents were faced with a Hobson’s choice: continually violate the Texas law and expose themselves to potentially huge liability; or violate the law once as a test case and suffer the injury of obeying the law during the pendency of the proceedings and any further review.
The District Court, however, enjoined petitioner not only from enforcing the fare advertising sections of the guidelines, but also from “initiating any enforcement action... which would seek to regulate or restrict any aspect of the... plaintiff airlines’ air fare advertising or the operations involving their rates, routes, and/or services.” 712 F. Supp., at 102. In so doing, it disregarded the limits on the exercise of its injunctive power. In suits such as this one, which the plaintiff intends as a “first strike” to prevent a State from initiating a suit of its own, the prospect of state suit must be imminent, for it is the prospect of that suit which supplies the necessary irreparable injury. See Public Serv. Comm’n of Utah v. Wycoff Co., 344 U. S. 237, 240-241 (1952). Ex parte Young thus speaks of enjoining state officers “who threaten and are about to commence proceedings,” 209 U. S., at 156 (emphasis added); see also id., at 158, and we have recognized in a related context that a conjectural injury cannot warrant equitable relief, see O’Shea, supra, at 502. Any other rule (assuming it would meet Article III case-or-controversy requirements) would require federal courts to determine the constitutionality of state laws in hypothetical situations where it is not even clear the State itself would consider its law applicable. This problem is vividly enough illustrated by the blunderbuss injunction in the present case, which declares pre-empted “any” state suit involving “any aspect” of the airlines’ rates, routes, and services. As petitioner has threatened to enforce only the obligations described in the guidelines regarding fare advertising, the injunction must be vacated insofar as it restrains the operation of state laws with respect to other matters.
HH HH ► — H
We now turn to the question whether enforcement of the NAAG guidelines on fare advertising through a State’s general consumer protection laws is pre-empted by the ADA. As we have often observed, “[p]re-emption may be either express or implied, and is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” FMC Corp. v. Holliday, 498 U. S. 52, 56-57 (1990) (internal quotation marks omitted); Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 95 (1983). The question, at bottom, is one of statutory intent, and we accordingly “‘begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.’” Holliday, supra, at 57; Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U. S. 189, 194 (1985).
A
Section 1305(a)(1) expressly pre-empts the States from “enact[ing] or enforcing] any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier....” For purposes of the present case, the key phrase, obviously, is “relating to.” The ordinary meaning of these words is a broad one — “to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with,” Black’s Law Dictionary 1158 (5th ed. 1979) — and the words thus express a broad pre-emptive purpose. We have repeatedly recognized that in addressing the similarly worded pre-emption provision of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U. S. C. § 1144(a), which pre-empts all state laws “insofar as they... relate to any employee benefit plan.” We have said, for example, that the “breadth of [that provision’s] pre-emptive reach is apparent from [its] language,” Shaw, supra, at 96; that it has a “broad scope,” Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724, 739 (1985), and an “expansive sweep,” Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 47 (1987); and that it is “broadly worded,” Ingersoll-Rand Co. v. McClendon, 498 U. S. 133, 138 (1990), “deliberately expansive,” Pilot Life, supra, at 46, and “conspicuous for its breadth,” Holliday, supra, at 58. True to our word, we have held that a state law “relates to” an employee benefit plan, and is pre-empted by ERISA, “if it has a connection with or reference to such a plan.” Shaw, supra, at 97. Since the relevant language of the ADA is identical, we think it appropriate to adopt the same standard here: State enforcement actions having a connection with, or reference to, airline “rates, routes, or services” are pre-empted under 49 U. S. C. App. § 1305(a)(1).
Petitioner raises a number of objections to this reading, none of which we think is well taken. First, he claims that we may not use our interpretation of identical language in ERISA as a guide, because the sweeping nature of ERISA pre-emption derives not from the “relates to” language, but from “the wide and inclusive sweep of the comprehensive ERISA scheme,” which he asserts the ADA does not have. Brief for Petitioner 33-34. This argument is flatly contradicted by our ERISA cases, which clearly and unmistakably rely on express pre-emption principles and a construction of the phrase “relates to.” See, e. g., Shaw, supra, at 96-97, and n. 16 (citing dictionary definitions); Ingersoll-Rand, supra, at 138-139. Petitioner also stresses that the FAA “saving” clause, which preserves “the remedies now existing at common law or by statute,” 49 U. S. C. App. § 1506, is broader than its ERISA counterpart. But it is a commonplace of statutory construction that the specific governs the general, see, e. g., Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U. S. 437, 445 (1987), a canon particularly pertinent here, where the “saving” clause is a relic of the pre-ADA/no preemption regime. A general “remedies” saving clause cannot be allowed to supersede the specific substantive pre-emption provision — unless it be thought that a State having a statute requiring “reasonable rates,” and providing remedies against “unreasonable” ones, could actually set airfares. As in International Paper Co. v. Ouellette, 479 U. S. 481, 494 (1987), “we do not believe Congress intended to undermine this carefully drawn statute through a general saving clause.”
Petitioner contends that § 1305(a)(1) only pre-empts the States from actually prescribing rates, routes, or services. This simply reads the words “relating to” out of the statute. Had the statute been designed to pre-empt state law in such a limited fashion, it would have forbidden the States to “regulate rates, routes, and services.” See Pilot Life, supra, at 50 (“A common-sense view of the word ‘regulates’ would lead to the conclusion that in order to regulate [a matter], a law... must be specifically directed toward [it]”). Moreover, if the pre-emption effected by § 1305(a)(1) were such a limited one, no purpose would be served by the very next subsection, which preserves to the States certain proprietary rights over airports. 49 U. S. C. App. § 1305(b).
Next, petitioner advances the notion that only state laws specifically addressed to the airline industry are pre-empted, whereas the ADA imposes no constraints on laws of general applicability. Besides creating an utterly irrational loophole (there is little reason why state impairment of the federal scheme should be deemed acceptable so long as it is effected by the particularized application of a general statute), this notion similarly ignores the sweep of the “relating to” language. We have consistently rejected this precise argument in our ERISA cases: “[A] state law may ‘relate to’ a benefit plan, and thereby be pre-empted, even if the law is not specifically designed to affect such plans, or the effect is only indirect.” Ingersoll-Rand, supra, at 139; see Pilot Life, supra, at 47-48 (common-law tort and contract suits pre-empted); Metropolitan Life, 471 U. S., at 739 (state law requiring health insurance plans to cover certain mental health expenses pre-empted); Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504, 525 (1981) (workers’ compensation laws pre-empted).
Last, the State suggests that pre-emption is inappropriate when state and federal law are consistent. State and federal law are in fact inconsistent here — the DOT opposes the obligations contained in the guidelines, and Texas law imposes greater liability — but that is beside the point. Nothing in the language of § 1305(a)(1) suggests that its “relating to” pre-emption is limited to inconsistent state regulation; and once again our ERISA cases have settled the matter: “‘The pre-emption provision... displace^] all state laws that fall within its sphere, even including state laws that are consistent with ERISA’s substantive requirements.’” Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 829 (1988); Metropolitan Life, supra, at 739.
B
It is hardly surprising that petitioner rests most of his case on such strained readings of § 1305(a)(1), rather than contesting whether the NAAG guidelines really “relat[e] to” fares. They quite obviously do. Taking them seriatim: Section 2.1, governing print advertisements of fares, requires “clear and conspicuous disclosure [defined as the lesser of one-third the size of the largest typeface in the ad or ten-point type] of restrictions such as” limited time availability, limitations on refund or exchange rights, time-of-day or day-of-week restrictions, length-of-stay requirements, advance-purchase and round-trip-purchase requirements, variations in fares from or to different airports in the same metropolitan area, limitations on breaks or changes in itinerary, limits on fare availability, and “[a]ny other material restriction on the fare.” Section 2.2 imposes similar, though somewhat less onerous, restrictions on broadcast advertisements of fares; and § 2.3 requires billboard fare ads to state clearly and conspicuously “‘Substantial restrictions apply’” if there are any material restrictions on the fares’ availability. The guidelines further mandate that an advertised fare be available in sufficient quantities to “meet reasonably foreseeable demand” on every flight on every day in every market in which the fare is advertised; if the fare will not be available on this basis, the ad must contain a “clear and conspicuous statement of the extent of unavailability.” §2.4. Section
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
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Answer:
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songer_state
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37
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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".
Jon Tom STATON, Plaintiff-Appellant, v. James K. MAYES et al., Defendants-Appellees.
No. 75-1332.
United States Court of Appeals, Tenth Circuit.
Argued Jan. 28, 1976.
Decided Feb. 15, 1977.
As Amended on Denial of Rehearing and Rehearing En Banc April 11, 1977.
As Amended on Denial of Rehearing May 9, 1977.
Kay Wilson, Jr., Muskogee, Okl., for plaintiff-appellant.
Andrew Wilcoxen, Muskogee, Okl. (Bruce Green, Pearson & Green, Muskogee, Okl., on the brief), for defendants-appellees.
Before HOLLOWAY, BARRETT and DOYLE, Circuit Judges.
The petition of appellees for rehearing was denied by order of Judges Holloway and Doyle, Judge Barrett voting to grant rehearing; the petition of appellees for rehearing en banc was denied by Judges Hill, Holloway, McWilliams and Doyle, Chief Judge Lewis and Judges Seth and Barrett voting to grant rehearing en banc.
The petition of appellant for rehearing was denied on May 9, 1977, by the following order of Judges Holloway, Barrett and Doyle;
On consideration of appellant’s petition for rehearing directed to our revised opinion, and the Court being satisfied that no claim for reinstatement beyond the June 30, 1974, expiration of appellant’s contracts was made or urged to the trial court and that a court order for reinstatement would be inappropirate in the circumstances before us, the appellant’s petition is denied.
HOLLOWAY, Circuit Judge.
This civil rights suit challenges the dismissal of plaintiff, Dr. Staton, as superintendent of Independent School District No. 20 of Muskogee County, Oklahoma, which is named a defendant. Defendants Mayes, Wade and Moore were three members of the five-member board who caused the dismissal in February, 1973, following a hearing on charges of willful neglect of duty and incompetence. In April, 1973; this suit was brought alleging denial of due process and seeking reinstatement, expungement of the board’s action, damages and other relief. After an evidentiary hearing the trial court rejected the constitutional claims and dismissed the action, and this appeal followed.
For some time before the dismissal, defendant Moore had voted against renewing plaintiff’s contract. Defendant Wade had also voted once not to renew. However, they were outvoted and plaintiff had been continued as superintendent. Shortly before a school board election in January, 1973, a board majority voted for a renewal again and a contract with plaintiff extending to June 30, 1974, was approved.
In his election campaign defendant Mayes stated he would vote for a change in superintendent. He was elected and then took office on February 5, 1973, when the board met and organized. At that same meeting, the board voted a proposed dismissal of plaintiff. A letter was sent to Dr. Staton the next day notifying him of the proposed dismissal on grounds of willful neglect of duty and incompetence, and of a hearing scheduled on February 19.
Dr. Staton appeared at the hearing with counsel and 12 witnesses. After the first witness called by the board to support the charges was sworn, but before he began to testify, plaintiffs attorney objected to the introduction of any testimony, challenging the proceedings on several grounds. The board heard the objections but went forward with the hearing, which Dr. Staton had transcribed.
The hearing was conducted on the evenings of February 19 and 20. On February 22 at a third session, defendants Mayes, Moore and Wade voted to dismiss Dr. Sta-ton effective March 15, with suspension of all his authority to continue until that date. Board member Matthews voted not to dismiss plaintiff and Mrs. Chandler was absent. The board’s action was reflected as a part of its minutes. There were no further written or oral statements of findings on the dismissal.
Although several grounds were alleged as the basis of the civil rights complaint, the court trial was confined to two issues, adequacy of notice of the hearing and alleged bias by the board. The trial court’s memorandum opinion found against plaintiff on both grounds and dismissed. On appeal plaintiff makes these principal arguments, claiming denial of procedural due process: (1) the notice gave no specifics of the acts or deficiencies considered to amount to willful neglect of duty or incompetence, nor any of the adverse witnesses; and (2) the board majority causing the dismissal had made public statements or private commitments against plaintiff, showing a biased tribunal. Plaintiff argues that the adverse testimony established no incompetence or willful neglect of duty and that it dealt only with vague terms such as “disharmony.” He says that any “disharmony” was only reaction to an integration system, a teacher evaluation program and an annexation plan, all of which the board had ordered Dr. Staton to implement. Plaintiff also argues there were no findings by the board after its hearing and no adequate findings by the trial court on the issues before it. (Brief of Appellant, 15-16, 21, 30, 37).
The right to procedural due process
As the predicate for his procedural due process claim, plaintiff argues that he had a property interest by virtue of his contracts that had been renewed to extend to June 30,1974, at $25,000 per year, with l/i2 years remaining (Brief of Appellant, 15). And he asserts that he had a deprivation of liberty and property by the stigma of being branded incompetent and guilty of willful neglect of duty.
We must agree with both contentions. Plaintiff had a legitimate claim of entitlement to his position derived from his contracts. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548. Moreover, this was a proposed dismissal of a professional officer by a public body for willful neglect of duty and incompetence. These charges were made publicly • and might seriously damage plaintiff’s standing and associations in his community and affect his good name and reputation. See id. at 573, 92 S.Ct. 2701; Wellner v. Minnesota State Junior College Board, 487 F.2d 153, 155-56 (8th Cir.); Huntley v. Community School Board of Brooklyn, 543 F.2d 979, 985 (2d Cir.). Dismissal on such grounds would likely have serious effect on his ability to take advantage of other employment, see Powers v. Mancos School District, 539 F.2d 38, 43 (10th Cir.), there being no mere private communication of the grounds for discharge as in Bishop v. Wood, 426 U.S. 341, 347-348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684.
We are convinced that the procedural due process guarantee applied to insure the plaintiff fundamentally fair procedures in connection with these proceedings concerning his proposed discharge.
Adequacy of the notice
Plaintiff argues that the mere notice of charges of incompetence and willful neglect of duty, without specificity as to acts or deficiencies alleged, and without naming adverse witnesses, amounted to a denial of due process (Brief of Appellant, 15, 28).
At a minimum, the Due Process Clause of the Fourteenth Amendment required notice and an opportunity for hearing appropriate to the nature of the case before deprivation of the liberty or property interests of plaintiff which have been identified. See Roth, supra, 408 U.S. at 573, 576 n. 15, 92 S.Ct. 2701; Goss v. Lopez, 419 U.S. 565, 579, 581, 95 S.Ct. 729, 42 L.Ed.2d 725. These basic requirements must be determined with consideration of both the nature of the state function involved as well as of the private interests affected by the governmental action. Cafeteria and Restaurant Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230. And in connection with possible judicial interposition in cases like this, we must be mindful of the commitment in our Nation of public education to the control of state and local authorities. Goss v. Lopez, supra, 418 U.S. at 578, 95 S.Ct. 729.
The trial court rejected the argument on lack of adequate notice, pointing to the use in the letter of the statutory terms of grounds for dismissal, to the plaintiff’s failure to ask for a bill of particulars or a more definite notice, and to plaintiff’s apparent realization of what was involved as shown by his preparedness to meet the charges at the hearing.
It is true that the charges of incompetency and willful neglect of duty were grounds of removal provided in 70 O.S.A. § 6-103. However we cannot agree that this, without more, shows meaningful notice of what one must be prepared to meet. We do agree that the lack of any objection to the notice letter and the absence of any request for a more definite statement of the charges are significant. There was a reasonable time interval of 13 days between mailing the notice and the hearing itself. Not until the first witness at the hearing was called was any objection made to adequacy of the notice.
Plaintiff objects to the trial court’s reasoning, citing Dunham v. Crosby, 435 F.2d 1177 (1st Cir.), which did reject a similar argument on lack of request for a hearing. The First Circuit held there that a teacher was not barred from asserting a due process claim of lack of a hearing by failure to request a hearing. We have no disagreement with the reasoning there applied.
We feel that here, however, since some notice was given to the plaintiff a reasonable time ahead of the scheduled hearing, an objection to the sufficiency of the notice not made until commencement of the hearing came too late. In fact, since his counsel made the objection quite fully and formally as the testimony started, with no request for a continuance, it is difficult for plaintiff to argue against a ruling of a knowing waiver. Particulars of asserted grounds for dismissal have been furnished in similar cases, e. g., Simard v. Board of Education of Town of Groton, 473 F.2d 988, 991 n.5 (2d Cir.); Blunt v. Marion County School Board, 515 F.2d 951, 954 (5th Cir.), and in the circumstances before us, we feel that the belated claim of insufficiency of the notice does not demonstrate a denial of due process. Cf. Grimes v. Nottoway County School Board, 462 F.2d 650, 653 (4th Cir.). Moreover, there is no persuasive showing that the defense was impeded by lack of further details. Simard v. Board of Education of Town of Groton, supra at 994.
In sum, we cannot sustain the claim that there was a defective notice which amounted to a denial of due process.
The claim of a biased tribunal
Plaintiff’s most substantial claim of denial of procedural due process is that the board was a biased tribunal. The point requires examination of the background and of the system of school administration involved.
The board is an elective body under Oklahoma law. 70 O.S.A. § 5-107A. At the time this dispute arose the board was the only body empowered to dismiss a superintendent for willful neglect of duty or incompetency. In cases involving these grounds for removal, the board’s decision at the hearing was final. 70 O.S.A. § 6-103. No provision was made for a hearing by an alternative tribunal or for disqualification of board members on a challenge of bias or prejudice.
At the opening of the hearing on the proposed dismissal of Dr. Staton, several objections to the proceeding going forward were made. One objection was “to the bias of the board and no procedure to challenge that bias and constituting deprivation of due process.” (R. IV, 9).
We start with a fundamental constitutional principle: “A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases.” In Re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942; see also Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 25 L.Ed.2d 287; Wong Yang Sung v. McGrath, 339 U.S. 33, 45-46, 50, 70 S.Ct. 445, 94 L.Ed. 616. Due process itself however, is a term that “negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230. In a recent similar ease the Supreme Court stated that “[determining what process is due in a given setting requires the Court to take into account the individual’s stake in the decision at issue as well as the State’s interest in a particular procedure for making it.” Hortonville Joint School District v. Hortonville Education Association, 426 U.S. 482, 494, 96 S.Ct. 2308, 2315, 49 L.Ed.2d 1.
There is an obvious interest of the State in the particular procedure provided for removal of school personnel. As the trial court observed, there is a system of administration by an elective board which governs the affairs of the school district and employs and dismisses superintendents and teachers. And as in the Hortonville case, when the hearing was held the board was the only body empowered to employ and dismiss. In such a case we have said that out of necessity, disqualification will not be permitted to destroy the only tribunal with power to act. See Brinkley v. Hassig, 83 F.2d 351, 357 (10th Cir.).
On the other hand, an individual like the plaintiff has a profound interest in the fairness of the hearing tribunal whose decision may jeopardize his property interest in his position and his liberty interest of standing and reputation in his profession. See Board of Regents v. Roth, 408 U.S. 564, 573, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548. In connection with the fairness and the appearance of fairness of the board, we must weigh these circumstances:
During the month before the hearing, defendant Mayes made public statements in his campaign for election to the board concerning Dr. Staton. In newspaper advertising Mayes stated that defendants Moore and Wade had publicly said that no progress could be made with school problems until there was a new superintendent, that he, Mayes, was pledged to seek a new top level administration for the schools, that from discussions with parents, teachers and citizens it had become apparent to him that the trouble lay with the superintendent, and that he would vote to make the necessary change. (See Plaintiff’s Exhibits 12, 13 and 14 in the appendix to this opinion). Mayes testified at trial, however, that he had not committed himself before hearing the evidence to vote for plaintiff’s dismissal and felt the decision had to be based on the evidence at the hearing. (R. I, 98-99). It was Mayes who moved for the dismissal, the motion carrying by the votes of Mayes, Moore and Wade. (See note 4, supra).
The other defendants testified at trial also. Moore said he listened to the evidence at the hearing and required proof to be there and based his decision on the evidence he heard at the hearing. He admitted going to visit with a board member, Mrs. Chandler, and saying there was a possibility plaintiff would be leaving and if they could “be together on the board and not disrupt the board, where we could continue to have school for children, it would be best for all of us.” (Id. at 102-03).
Defendant Wade testified that he based his decision on disruption between the principal, the teachers and the community and felt that plaintiff was the prime cause after he had heard all the evidence, and based his decision on that. He said he had not been committed to terminate plaintiff before hearing the evidence. He admitted saying to Mrs. Chandler in late 1972, after another hearing in Oklahoma City, that Dr. Staton “has got to go.” (Id. at 106-07).
The firm public statements before the hearing by defendant Mayes for the removal of Dr. Staton, and the discussions by defendants Moore and Wade as admitted, reveal a tribunal not meeting the demands of due process for a hearing with fairness and the appearance of fairness. Cinderella Career and Finishing Schools, Inc. v. F.T.C., 138 U.S.App.D.C. 152, 425 F.2d 583, 590-92; Texaco, Inc. v. F.T.C., 118 U.S.App.D.C. 366, 336 F.2d 754, 759-60. These were not mere statements on a policy issue related to the dispute, leaving the decision maker capable of judging a particular controversy fairly on the basis of its own circumstances. Hortonville, supra, 426 U.S. at 492-493, 96 S.Ct. at 2314. Nor was this simply a case of the instigation of charges and a statement of them during an investigatory phase by the body that will later decide the merits of the charges. E. g., Withrow v. Larkin, 421 U.S. 35, 52-55, 95 S.Ct. 1456, 43 L.Ed.2d 712; and see Kennecott Copper Corp. v. F.T.C., 467 F.2d 67, 79-80 (10th Cir.).
Instead this case involves statements on the merits by those who must make factual determinations on contested fact issues of alleged incompetence and willful neglect of duty, where the fact finding is critical. Cinderella Career and Finishing Schools, Inc. v. F.T.C., 138 U.S.App.D.C. 152, 425 F.2d 583, 590-92. The hearing involved the possibility of an erroneous and unfair factual decision which was absent in Hortonville, where the basic facts were admitted. See, 426 U.S. at 494, 96 S.Ct. at 2315. And the ruling here concerned factual decisions on alleged incompetence and willful neglect of duty — -issues which were both hotly contested and of critical effect on the liberty and property interests of the plaintiff.
We are mindful of the reference in the trial court’s opinion to the testimony by each defendant that they voted to dismiss plaintiff based on the evidence presented at the hearing, and that the plaintiff had failed to establish that he was denied procedural due process. While the defendants testified that they required proof at the hearing and decided on the basis of the proof, the evidence is uncontradicted on the making of several public statements by defendant Mayes for the removal of plaintiff, and of unfavorable discussions by Moore and Wade as well. We are convinced that these established circumstances left no room for a determination that there was a decision by a fair tribunal, with the appearanee of fairness, in view of the totality of these circumstances. Cinderella Career and Finishing Schools, Inc. v. F.T.C., 138 U.S.App.D.C. 152, 425 F.2d 583, 590-92 (due process not afforded in view of a prior public statement by one commission member); see In Re Murchison, 349 U.S. 133, 139, 75 S.Ct. 623, 99 L.Ed. 942; Texaco, Inc. v. F.T.C., 118 U.S.App.D.C. 366, 336 F.2d 754, 759-60; Perlman v. Shasta Joint Junior College District Board of Trustees, 9 Cal.App.3d 873, 88 Cal.Rptr. 563, 570 (3d Dist.); and see Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 25 L.Ed.2d 287. On the record as a whole we are left with the firm conviction that this board decision cannot stand and that a mistake was made in the ruling denying the due process claim. Zenith Corp. v. Hazeltine, 395 U.S. 100,123, 89 S.Ct. 1562, 23 L.Ed.2d 129.
We do not say that such statements in an election campaign or between members were unlawful or improper. However, a due process principle is bent too far when such persons are then called on to sit as fact finders and to make a decision affecting the property interests and liberty interests of one’s reputation and standing in his profession. See Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548. When the constitutional guarantee of an impartial and fair hearing is invoked at that stage, the due process considerations must prevail. See In Re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942.
We are also mindful of the fact that disqualification or an alternate tribunal were not provided for at the time of the board hearing. We realize that both the board and the trial court faced this problem. There was also the rule of necessity to consider, a rule applied in some circumstances to permit tribunals to proceed, despite disqualification problems. See Brinkley v. Hassig, supra, 83 F.2d at 357. However, the Oklahoma legislature has now provided appeal remedies after a board decision, with a full hearing and review on the facts by the Professional Practices Commission and further appeal to the State Board of Education. See 70 O.S.Supp.1975, § 6-103. Thus means are now available for an equitable solution protecting the right to a fair hearing.
After our disposition which will require setting aside the prior board decision, if the board should determine that it should proceed with removal procedures against the plaintiff, and a new removal decision is entered, the appeal remedies can be used for a full review on the facts and a decision by other tribunals, if a challenge is made to the fairness of the tribunal and the new decision. Cf. Gonzales v. Automatic Employees Credit Union, 419 U.S. 90, 101, 95 S.Ct. 289, 42 L.Ed.2d 249; Wilson v. City of Port Lavaca, 391 U.S. 352, 88 S.Ct. 1502, 20 L.Ed.2d 636. We feel this disposition proper and necessary to respect the constitutional guarantee of a fair hearing.
Conclusion and disposition
Only one issue requires further discussion. This is the claim by plaintiff that the failure of the board to make findings after the hearing amounted to a denial of due process (Brief of Appellant, 30). While the issue was not urged in the trial court, it may be of importance in further proceedings and it has due process implications justifying our consideration on the merits. Gomes v. Williams, 420 F.2d 1364, 1367 (10th Cir.).
After the hearing, the board’s decision was resolved by a minute that merely noted plaintiff’s removal on motion by defendant Mayes, with defendants Mayes, Wade and Moore voting for removal. (Plaintiff’s Ex. 4). Assuming that such action did imply a finding that the removal was based on the general charges of incompetence and willful neglect of duty in the notice of the proposed removal, such conclusory terms were not sufficient to sustain the action under due process principles. While there need be no full opinion or even formal findings of fact and conclusions of law, the decision maker should state the reasons for the determination and the evidentiary basis relied on. See Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 25 L.Ed.2d 287; Kinsella v. Board of Education, 378 F.Supp. 54, 60 (W.D.N.Y.). Such rudimentary statements of reasons are a safeguard against a decision on ex parte evidence. We must agree that those fundamental elements were lacking here, and this has compounded the difficulty of the case. A statement of reasons and a fair indication of the evidentiary basis relied on should be given in such a decision.
For reasons stated earlier, under Fourteenth Amendment due process principles we must hold that the adverse determination on the charges against Dr. Staton is invalid. Accordingly, we vacate the judgment of the trial court and remand with directions that the former determination on the charges be declared invalid and that it should be expunged.
The Board of the defendant District may then consider, if it wishes, making a new finding on the charges to determine whether the earlier removal on them was proper. If a new decision on the charges is entered by the Board and challenges to it are made, disposition by the trial court will be withheld to permit completion of any State appeal or review proceedings. On conclusion of such proceedings, the trial court may then consider whether further equitable or compensatory relief may be proper.
APPENDIX
Plaintiff’s exhibit 12 is a copy of a campaign statement of defendant Mayes appearing in a Muskogee newspaper on January 22, 1973. In pertinent part the statement read:
MIKE MOORE and MOODY WADE:
The only members of the present school board with children in school have stated publicly that no progress can be made with our school problems until we get a new superintendent.
JIM MAYES:
The candidate with a child in school, is pledged to seek a new top level administration for our schools. With 2 members of a 5 member board who already feel the same way, a new superintendent is now possible.
Plaintiff’s exhibit 13 is a campaign statement of defendant Mayes appearing in a Muskogee newspaper on January 17, 1973, which stated in part:
The only thing you as a Muskogee citizen can do now is to vote for the one candidate for the board of education who pledges to get a sound curriculum for the students and teachers, and to get rid of an unsound administration for Muskogee.
Plaintiff’s exhibit 14 was a campaign statement of defendant Mayes appearing on January 23, 1973 in a Muskogee newspaper, which stated in part:
FROM DISCUSSIONS WITH PARENTS, TEACHERS, AND CONCERNED CITIZENS DURING THE COURSE OF THE CAMPAIGN IT HAS BECOME APPARENT TO ME THAT THE TROUBLE WITHIN THE MUSKOGEE SCHOOL SYSTEM LIES WITH THE PRESENT SUPERINTENDENT AND THAT PROGRESS FOR EDUCATION IS IMPOSSIBLE UNLESS A CHANGE IS MADE. IF ELECTED I WILL VOTE TO MAKE THE NECESSARY CHANGE.
SIGNED
JAMES K. MAYES, JR.
. The letter stated:
February 6, 1973
Muskogee, Oklahoma
Dr. Jon Tom Staton
4301 West Broadway
Muskogee, Oklahoma 74401
Dear Dr. Staton:
The Muskogee School Board of District 1-20 has voted to dismiss you as Superintendent of Schools for said District.
Please be advised that this is a notice of the proposed dismissal and that the charges against you are willful neglect of duty and incompetency. These charges are brought by this School Board.
Please further be advised that a hearing on the proposed dismissal shall be held at the Education Center, 570 North 6th Street, Muskogee, Oklahoma on February 19, 1973, at 7:30 P.M.
Please be further advised that you are entitled to be present and represented by counsel at said hearing.
Yours very truly,
(signed)
MIKE MOORE
President of the Muskogee School Board, District 1-20
. Plaintiff’s counsel objected that: (1) the superintendent was dismissed prior to the hearing, contrary to the Oklahoma statutes; (2) the notice failed to state who brought the charges; (3) the charges failed to state what the acts constituting alleged incompetence or willful neglect of duty were, or when committed, failing to apprise of matters necessary for defense; (4) not all the board was present (one member was absent); (5) there was a denial of due process; (6) the board was exceeding its jurisdiction to hold a hearing, not having served the teacher with a statement of charges or an identification of accusers; and (7) the board was biased and there was no procedure to challenge that bias.
. The transcript is part of our record, Plaintiffs Ex. 17, now R. IV.
. The minutes stated (R. Ill, 203):
3. Dismissal of Dr. Jon Tom Staton
IT WAS MOVED by Mr. Mayes and seconded by Mr. Wade THAT DR. JON TOM STA-TON BE DISMISSED, HIS DISMISSAL TO BE EFFECTIVE MARCH 15, 1973, THE FIRST TWO WEEKS IN MARCH TO BE CONSIDERED THE USUAL VACATION AND THAT THE SUSPENSION OF ALL RESPONSIBILITIES AND AUTHORITY CONTINUE UNTIL SUCH DATE.
Vote: Yes — Mayes, Wade, Moore. No— Matthews. The motion was declared carried by a three to one vote.
. We do not understand the defendants’ arguments to deny that “property” and “liberty” interests were involved.
. The February 5 meeting where it was decided that notice of the proposed dismissal should be given for willful neglect of duty and incompetency was a regular meeting attended by representatives of the news media and a room full of guests (see Minutes, R. Ill, 210). The hearings on February 19 and 20 were also open meetings, with numerous witnesses present to testify. And the February 22 meeting where the decision was made to dismiss plaintiff was also attended by representatives of the news media and guests (see Minutes, R. Ill, 203). Thus the circumstances were unlike the private communication of reasons for dismissal in Bishop v. Wood, 426 U.S. 341, 347-348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684.
. There was uncontradicted expert testimony at trial as to the adverse effect on a school official’s career of a dismissal based on such charges (R. I, 87-91).
. While no pendent claim of any failure to meet State notice requirements is asserted, we note that the Oklahoma Court has enforced a state statutory requirement of notice containing a statement of causes related to a legal cause for dismissal, before a hearing. See Lovelace v. Ingram, 518 P.2d 1102 (Okl.). Of course, in addition to state requirements, federal due process minimum standards must be observed.
. As noted in discussing our disposition, this procedure is now changed and certain appellate bodies may now make the final decision on removal after a board hearing.
. 70 O.S.A. § 6-103 affords procedures for the removal of teachers. However § 70 O.S.A. § 1-116 provides that the definition of a “teacher” includes superintendents generally for purposes of the Oklahoma school code.
. We have noted the statement in the trial court’s memorandum opinion that the record of the board hearing reveals evidence of shortcomings of the plaintiff which could amount to a willful neglect of duty and incompetence in the judgment and discretion of the board.
Due to the infirmity we find in the board’s decision in the case, we need not decide whether the record supports the board action. It suffices to note that the record shows no admitted set of facts concerning plaintiff as were present in Hortonville. The proof presented serious fact problems.
. There was undisputed proof of earlier statements by three Board members that Dr. Staton should be removed. In addition to that of defendant Mayes and his reference to earlier public statements by defendants Moore and Wade (see Appendix), there was proof of such statements during campaigns by defendants Moore and Wade in the record of the Board hearing by testimony of a former Board member. (See Hearing Transcript, p. 342, which was made plaintiffs Ex. 17, and defendants’ Ex. 1). The proof of these statements by the three Board members was not disputed.
. We have noted that the contracts between the board and the plaintiff have expired and hence a reinstatement order would be inappropriate. After any further hearings which may be held by the administrative boards to determine whether the earlier ruling against the plaintiff was proper, the trial court may consider whether any other relief is appropriate.
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_const1
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3
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Luther W. BORROR, Administrator of the Estate of Bonita Ann Curtician, Deceased v. SHARON STEEL COMPANY, a Corporation, Appellant.
No. 14327.
United States Court of Appeals Third Circuit.
Argued Sept. 26, 1963.
Decided Jan. 27, 1964.
Bruce R. Martin, Pittsburgh, Pa., at the time of argument with Pringle, Bred-in & Martin, Pittsburgh, Pa., for appellant.
James E. McLaughlin, Pittsburgh, Pa. (Dennis C. Harrington, Pittsburgh, Pa., on the brief), for appellee.
Before BIGGS, Chief Judge, and KALODNER and GANEY, Circuit Judges.
BIGGS, Chief Judge.
Borror, named as administrator of the estate of Bonita Ann Curtician, brought suit by a single complaint under the Pennsylvania Survival Act, 20 P.S. § 320.601, and under the Pennsylvania Wrongful Death Act, 12 P.S. § 1601 et seq., to recover damages against Sharon Steel Company. The details of how Miss Curtician met her death need not be given here. It is sufficient to state for the purposes of the instant appeal that on July 20, 1960, there was an explosion at the Sharon Steel Company at Sharon, Pennsylvania, and as a consequence thereof Miss Curtician sustained injuries which resulted in her death on the same day. The complaint alleges that Sharon was negligent. Miss Curtician was survived by her mother and father.
The case was tried to a jury and resulted in a judgment in favor of the estate of Miss Curtician under the Survival Act in the sum of $10,000 and in a judgment in favor of Miss Curtician’s mother and father under the Wrongful Death Act in the sum of $15,000. The judgment recovered under the Survival 'Act has not been appealed. The judgment recovered by the Curticians under the Wrongful Death Act is the subject of this appeal. In the court below the defendant, Sharon, moved for a directed verdict in its favor. The grounds of that motion are substantially the same, we believe, as those presented to this court by Sharon for a reversal of the judgment and for the dismissal of the action.
It is conceded that Miss Curtician was and her parents are citizens of Pennsylvania and that Sharon is a corporation of the Commonwealth, and further that Borror, the plaintiff, is a citizen of West Virginia, appointed administrator of Miss Curtician’s estate by the Register of Wills of Mercer County, Pennsylvania, and that he brought the Wrongful Death Act suit at bar as administrator. There is no contention that the suit at bar is a collusive one prohibited by Section 1359, 28 U.S.C., as was the contention in Corabi v. Auto Racing, Inc., 264 F.2d 784, 75 A.L.R.2d 711 (3 Cir. 1959), but the standing of Borror to maintain the suit has been brought into issue here as it was in Jaffe v. Philadelphia and Western R. Co., 3 Cir., 180 F.2d 1010 (1950), in Fallat v. Gouran, 3 Cir., 220 F.2d 325 (1955), in Corabi, supra, and to some extent at least in Berkowitz v. Philadelphia Chewing Gum Corporation, 3 Cir., 303 F.2d 585 (1962).
We have difficulty in grasping Sharon’s theory of defense. The “Statement of Question Involved” in its brief states the following, which we believe embodies the substance of Sharon’s position: “Where, as here, the Pennsylvania Wrongful Death Acts vest the cause of action for minor decedent’s death in minor’s parents, who were both Pennsylvania citizens at the time suit was brought, and defendant was also a citizen of Pennsylvania; and, where Pennsylvania Rule of Civil Procedure Rule 2202(b) gave the parents the right to sue for said wrongful death in their own names at the time this suit was brought; does the Pennsylvania Rule of Civil Procedure which permits wrongful death actions to be brought by the administrator on behalf of the parents make this a case or controversy between citizens of different states merely because the parents elected not to sue in their own names, but caused suit to be brought in the name of a citizen of West Virginia who has been appointed administrator of the minor’s estate?” Sharon’s answer to its own question is “no.”
I.
12 P.S. § 1602 provides that under the circumstances here present the parents of Miss Curtician are entitled to the recovery. Compare 12 P.S. § 1601 which provides that if suit under the Wrongful Death Act is not brought by the survivor’s spouse, the suit may be brought by the administrator.
Rule 2201, Pa.Rules of Civil Procedure, 12 P.S.Appendix, defining the term “personal representative,” states that “ ‘personal representative’ means the executor or administrator of the estate of a decedent duly qualified by law to bring actions within this Commonwealth.”
Rule 2202 provides: “(a) Except as otherwise provided in clause (b) of this rule, an action for wrongful death shall be brought only by the personal representative of the decedent for the benefit of those persons entitled by law to recover damages for such wrongful death. * * * (b) If no action for wrongful death has been brought within six months after the death of the decedent, the action may be brought by the personal representative or by any person entitled by law to recover damages in such action as trustee ad litem on behalf of all persons entitled to share in the damages.”
Rule 2203 providing procedure to remove a plaintiff in a wrongful death action states: “(a) Any person entitled by law to recover damages in an action for wrongful death may petition the court in which an action for such wrongful death is pending to remove the plaintiff and to substitute as a new plaintiff any person entitled by law to recover damages in the action or a personal representative of the decedent.” Rule 2203(b) states: “After hearing, of which due notice shall be given to the plaintiff in the action and to all persons entitled by law to recover damages, the court may remove the plaintiff and order the substitution prayed for, if it deems the same advisable.” A single note, appended to the text of the rule, 12 P.S.Appendix, p. 490, states: “This rule has the effect of making the plaintiff in the wrongful death action accountable to the court in which the action is brought for his conduct therein. In addition, it permits the parties beneficially interested in the damages recovered in the action to exercise some supervisory control over the conduct of the action by enabling them to obtain the assistance of the court if the action is not properly conducted on their behalf.”
Rule 2205 provides: “When an action for wrongful death has been instituted, the plaintiff shall give notice, by registered mail or in such other manner as the court shall direct by general rule or special order, to each person entitled by law to recover damages in the action, that an action has been instituted for wrongful death, naming the decedent and stating the court, term and number of the action.”
Rule 2206 provides in part: “(b) When as the result of a verdict, judgment, compromise, settlement or otherwise it has been determined that a sum of money is due the plaintiff in an action for wrongful death, the court, upon petition of any party in interest, shall make an order designating the persons entitled to share in the damages recovered and the proportionate share of the net proceeds to which each is entitled. * * * ” “(d) When an order designating the persons entitled to share in the damages has been entered, the defendant may pay the amount due * * * to the plaintiff who shall hold the money as trustee for the persons designated in the order and shall mark the action discontinued or the judgment satisfied, as the case may be.” It should be noted that the Rules Committee’s “Note” to subsection (d) states that the rule in effect “eliminates the unsatisfactory rule of the prior law which permitted the nominal plaintiff in the action to receive the entire proceeds of the litigation, even though such person had only a fractional or no interest in such proceeds, without requiring such nominal plaintiff to give any security or to account in any way therefor.” It will be observed that the plaintiff is said to hold the proceeds of the suit as a “trustee.”
The Pennsylvania Rules of Civil Procedure were authorized by the Act of June 21, 1937, as amended, 17 P.S. § 61. The Act provides that the rules promulgated pursuant thereto “shall neither abridge, enlarge nor modify the substantive rights of any litigant nor the jurisdiction of any of the said courts * Relying largely on the statute quoted, the gist of Sharon’s position appears to be that the administrator, Borror, is not a real party in interest but at best a kind of next friend or guardian ad litem, in short, a kind of very nominal plaintiff, and that although he has a procedural standing to maintain the suit at bar, the-controversy is not between him and Sharon but between Sharon and Miss Curti-cian’s parents, who are the real parties in interest, and that there is no justiciable controversy between citizens of different states in the case at bar within the meaning of Section 1332, Title 28 U.S.C. But the use of such a term as “nominal” can lead to much difficulty because Rule 2201 defines the “personal representative” as meaning an executor or administrator of the estate of a decedent and that personal representative is undoubtedly qualified by law to bring such an action as that at bar within the Commonwealth of Pennsylvania. He is the master of the litigation. Once he has started it he is compelled to account for his conduct and may be removed for good cause shown. He may oppose his own removal since it is required that he be given notice of any attempt to remove him. See Rule 2203(b) quoted above. He prosecutes the action for named beneficiaries. He holds the proceeds of the suit in trust for them. He is the one who under the law must mark the action discontinued in case of settlement. His status is not that of a mere guardian ad litem or a next friend for he has many of the attributes of a true trustee, one who, while having legal title to property and choses in action, deals with them for the benefit of his cestuis que trustents.
The purpose of the Pennsylvania Rules of Procedure quoted above seems to be plain, viz., the administrator of the estate of the deceased individual, a statutory officer who is active in collecting the assets and satisfying the obligations of the estate, was deemed to be a person who when brought into legal being could also aptly interest himself in pursuing a cause of action for wrongful death for the benefit of those entitled thereto who frequently might be the beneficiaries of the estate of the deceased. In our opinion the effect of the Pennsylvania law, though not •creating substantive rights, does give a plaintiff such as Borror in a Pennsylvania wrongful death action a procedural standing which is so closely analogous to that of a trustee that he should be treated as if he were one as a matter of law and should be given a substantially similar standing in maintaining a suit such as that at bar. There is a justiciable controversy between Borror, the administrator of Miss Curtician’s estate, the plaintiff in the wrongful death suit, and Sharon within the purview of Article III, Section 2 of the Constitution of the United States, and there are adverse interests in litigation subject to adjudication. Coff-man v. Breeze Corporations, 323 U.S. 316, 324, 65 S.Ct. 298, 89 L.Ed. 264 (1945); Muskrat v. United States, 219 U.S. 346, 357, 31 S.Ct. 250, 55 L.Ed. 246 (1911). Cf. United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947).
Specifically, however, Borror has been named an “administrator.” We think it may not be putting too finely drawn a surmise on the situation presented at bar to suggest that the draftsmen of the Pennsylvania Procedural Rules provided that the representative of the beneficiaries in a wrongful death action could be denominated an “administi’ator” to the end that Rule 17(a) of the Federal Rules of Civil Procedure might be employed to maintain a suit such as that at bar in a court of the United States. In any event we can see no reason, Sharon’s contentions to the contrary notwithstanding, why we should look behind the plain language as well as the implications of the Pennsylvania Procedural Rules to hold that Borror is not such an “administrator” as to lie within the purview of Rule 17 (a) of the Federal Rules of Civil Procedure.
We note that the Court of Appeals for the Eighth Circuit in Minnehaha County, S. D. v. Kelley, 150 F.2d 356, 358-359 (1945), construing South Dakota’s wrongful death statute, South Dakota Code 37.2203, which required the action to be brought in the name of the executor or administrator of the decedent for the benefit of the surviving spouse, children, or if none for the parents or next of kin, arrived at the conclusion that the administrator could maintain the action and that his citizenship created diversity. But cf. Martineau v. City of St. Paul, 172 F.2d 777 (8 Cir. 1949). Although the South Dakota statute requires that the action be brought in the administrator’s or executor’s name, the Pennsylvania statutes and rules of practice here applicable, seem otherwise substantially indistinguishable. The Eighth Circuit Court of Appeals cited Mecom v. Fitz-simmons Drilling Co., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233 (1931), and Rule 17(a), and treated the term “administrator” as used in the federal rule as the equivalent of an administrator appointed to collect the assets of an estate and satisfy its obligations.
In McCoy v. Blakely, 217 F.2d 227 (8 Cir. 1954), the court pursued substantially the same course in construing a Nebraska statute, Neb.R.R.S. 30-810 (1943). It is true that that statute designated the administrator as the only person who could bring the wrongful death action but it should be observed that the Nebraska statute is similar to the Pennsylvania statutes and rules of practice in that the recovery received from the action goes directly to the beneficiaries and does not become a part of the general estate or subject to creditors’ claims.
In Loegering v. County of Todd, 185 F.Supp. 134 (1960), the United States District Court for the District of Minnesota had before it the Minnesota wrongful death statute. Prior to 1951 this act had provided for the bringing of suits by the executor or administrator of the estate. See 37 Minn.Stat.Ann. § 573.02 (1947). The court held that under that statute the executor was the only one who could properly bring the action as plaintiff and “ [a]t least to some extent, he was the real party in interest.” The court went on to say, “It appears that the Trustee under the amended wrongful death statute, 37 Minn.Stat.Ann. § 573.02 (Supp.1959), occupies a comparable position * * * and that the purpose of the 1951 amendment was mainly to permit the appointment of a representative by the District Court in which the wrongful death action is instituted, and thus to obviate the necessity of requiring the qualification of an administrator or executor in, the Probate Court. As the Trustee appointed to bring the wrongful death action, the plaintiff here is in the same category as the special administrator in Minnehaha County v. Kelley, supra [150 F.2d 356]. * * *” The Court of Appeals for the Eighth Circuit held in County of Todd, Minn. v. Loegering, 297 F.2d 470 (1961), that the Minnesota act as amended constituted the plaintiff a “trustee of an express trust * * * ” and that the trustee was the real party in interest within the purview of Rule 17 (a) and therefore she was entitled to maintain the suit. The fact that the plaintiff was the only one who could bring the suit seems to us to be of no substantial legal significance.
In Grady v. Irvine, 254 F.2d 224, 226 (4 Cir. 1958), a citizen of Maryland sued a citizen of Virginia to recover damages for personal injuries but thereafter died. A citizen of Virginia, the duly appointed administrator, was substituted as plaintiff and the complaint was amended to convert the action into one for wrongful death under §§ 8-628.1, 8-633, and 8-634 of the Code of Virginia, 1950. The statute creates a new right of action and recovery is not for the benefit of the dead person’s estate but goes to beneficiaries named in the statute. The Court of Appeals for the Fourth Circuit stated: “It is settled that where a personal representative initially files an action for wrongful death, it is the residence of the representative, not that of his decedent, which is relevant in the resolution, for purposes of federal jurisdiction, of the question of diversity of citizenship”, citing Mecom v. Fitzsimmons Drilling Co., supra. The order of the court below dismissing the suit for want of federal jurisdiction was affirmed. This case, of course, represents the obverse side of the coin the face of which we have been examining.
In Meehan v. Central Railroad of New Jersey, 181 F.Supp. 594, (D.C.N.Y.1960), it was contended that the plaintiff was not the real party in interest but that he was “only a special statutory trustee” and that it was necessary to look to the real parties, the beneficiaries, who were citizens of New Jersey and hence there was no diversity. N.J.S.A. 2A:31-2 provides “Every action commenced under this chapter shall be brought in the name of an administrator ad prosequendum of the decedent for whose death damages are sought, except where decedent dies testate and his will is probated, in which event the executor named in the will and qualifying, or the administrator with the will annexed, as the case may be, shall bring the action.” The United States District Court pointed out that in Mee-han, supra, 181 F.Supp. at 603-604, the New Jersey courts have held that “such an administrator ad prosequendum ‘is but a nominal representative to bring and prosecute the action,’ ” and “a mere trustee to bring and conduct the action” but nonetheless that the terms “real party in interest” and “nominal party” have been the subject of conflict among the circuits and elected to follow the rule of this circuit stating that “the ‘real party in interest’ test is not applied to determine diversity but the courts look instead to capacity to bring and maintain the suit”, citing, inter alia, Mecom v. Fitzsimmons Drilling Co. and Corabi v. Auto Racing, Inc., supra.
The Court of Appeals of the Eighth Circuit has treated the term “administrator” as one of art and as giving a statutory representative standing to maintain suit under Rule 17(a), Fed.R.Civ.Proc., as an “administrator” within the purview of that rule. In the Loegering case, the courts treated the representative bringing the wrongful death action as the trustee of “an express trust.”
Though the cases just cited are distinguishable on their precise facts from those of the case at bar, nonetheless they supply a useful analogy and point to the direction in which we think we should go.
For the reasons stated we conclude that Borror has the capacity to sue. Since his citizenship is diverse from that of Sharon’s he can maintain the suit at bar under Rule 17 (a).
II.
The problem, however, may be approached from another and perhaps simpler angle. First, we state that we can perceive no reason why Sharon lays such great emphasis on the fact that the representative who may maintain- the wrongful death action is not expressly required by law to do so. No one, whether it be a representative suing in the second six months, or the surviving spouse or a parent or parents suing within the twelve months period, is expressly required by the law of Pennsylvania to maintain any action for wrongful death. We regard this fact as only one of the indicia to be considered in respect to ascertaining Borror’s standing on this aspect of the case-. It should be pointed out that once the suit has been brought the plaintiff must pursue it or he may be removed for cause. Second, there is a justiciable controversy in the constitutional sense between the representative who brings the suit, here the administrator, and the defendant, Sharon. Third, we think it is clearly demonstrable, Rule 17(a) aside, that Borror has the capacity to maintain the suit under Rule 17(b).
Rule 17(b) provides that the capacity of an individual, other than one acting in a representative capacity, to sue or to be sued shall be determined by the law of his domicile. The rule states how the capacity of a corporation to sue or be sued shall be determined and then provides : “In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held * * If the rule be construed literally we must look to the law of the Commonwealth of Pennsylvania. Under that literal construction it cannot be successfully asserted that Borror has not the capacity to sue under the law of Pennsylvania. Rule 2201, Pennsylvania Rules of Civil Procedure, as we have said, defines the personal representative as the “administrator.” Rule 2202(b) states that if the action for wrongful death has not been brought within six months after the death of the decedent, it may be brought by the personal representative. Borror has brought the suit as administrator. This, in our opinion, is the end of this phase of the case for in Fallat v. Gouran, supra 220 F.2d at 327, we made plain our ruling that the issue was whether or not the representative had the capacity to sue. Here again, as in Fallat, we do not have to resolve a conflict between state and federal law for under either Borror has the capacity to maintain the suit at bar. It should be noted, moreover, that even under the strictest application of the Conformity Act, 17 Stat. 196, as it was originally conceived to be applicable, the requirements of the law of Pennsylvania have been met. See Fallat, supra 220 F.2d at 328. In so stating we wish to make it plain that we do not in any way alter or change the position taken by us in Fallat, supra 220 F.2d at 327-329. We hold, for the reasons stated, that since Borror has the capacity to sue and since his citizenship is diverse from that of Sharon’s, he may maintain the suit at bar.
III.
We conclude that the jurisdiction of the court below can also be sustained on a theory of pendent jurisdiction. Sharon concedes, as it must, that the court below had jurisdiction of the survival action. See 20 P.S. § 320.601. Rule 213(e) of the Pennsylvania Rules of Civil Procedure 12 P.S.Appendix, provides: “A cause of action for the wrongful death of a decedent and a cause of action for his injuries which survives his death may be enforced in one action but if independent actions are commenced they shall be consolidated for trial.
“(1) If independent actions are commenced or are pending in the same court, the court, on its own motion or the motion of any party, shall order the actions consolidated for trial.
“(2) If independent actions are commenced in different courts, the court in which the second action was commenced, on its own motion or the motion of any party, shall order the action transferred to the court in which the first action was commenced.
“(3) If an action is commenced to enforce one cause of action, the court, on its own motion or the motion of any party, may stay the action until an action is commenced to enforce the other cause of action and is consolidated therewith or until the commencement of such second action is barred by the applicable statute of limitation.” (Emphasis supplied.)
It is obvious from the foregoing that under Pennsylvania practice a wrongful death action and a survival action may be enforced in a “single action” as that phrase is used in the Pennsylvania rule. The two suits are complementary under the law of Pennsylvania. The plaintiff and the defendant are the same in both causes. The tort relied on is the same in both. The operative facts which give rise to the two suits are identical in each. The wrongful death action may be considered ancillary or pendent to the survival action, or the latter pendent to the former. Such a concept seems clearly within the contemplation of Pennsylvania practice. Such a course saves the time of jurors, of witnesses, of the parties, and of the judges, and prevents tortfeasors from being mulcted of damages.
The complaint states: “Third: Jurisdiction * * * is conferred by virtue of diversity of the citizenship of the various parties and further by reason of the fact that the amount in controversy exceeds Ten Thousand * * * Dollars, exclusive of interest and costs.”; “Fourth: The within action is brought under and by virtue of the Death Acts and Survival Statutes of the Commonwealth of Pennsylvania for and on behalf of George Curtician, father and Kathryn Curtician, mother of the plaintiff’s decedent.”, and “Eighth: The within action is brought to recover medical and funeral expenses, future loss of earnings and such amounts of money as plaintiff’s decedent would in her expected lifetime contribute to those persons entitled to share in the estate of the said minor decedent.” The ad damnum, clause recites: “Wherefore plaintiff brings this action to recover judgment, verdict and costs, all in excess of Ten Thousand * * * Dollars.”
It will be noted that the plaintiff in his complaint treats the two causes of action, wrongful death action and survival action, as if they were a single cause of action in strict accordance with the first paragraph of Rule 213 (e). He names the two statutes, Wrongful Death and Survival Acts, as if they created one action giving rights arising out of a single state of operative facts, as indeed they do. See paragraphs “Third”, “Fourth”, and “Eighth”, and the ad damnum clause, quoted above.
It is clear, of course, that a rule cannot make two causes of action exist where there was only one before or compact two causes of action into one, or indeed create a cause of action. It is manifest also, as we have endeavored to make plain, that the Pennsylvania Rules of Civil Procedure do not create or change substantive rights. See 17 P.S. § 61 quoted above in pertinent part. We make no assertion to the contrary. In respect to the Wrongful Death Act and the Survival Act creating separate causes of action, the law of Pennsylvania appears to be clear. See for example Curtis v. A. Garcia Y Cia, Ltd., 241 F.2d 30 (3 Cir. 1957), and Arny v. Philadelphia Transportation Co., 163 F.Supp. 953 (D.C.Pa.1958), appeal dismissed on the ground that there was no appealable final judgment, 266 F.2d 869 (3 Cir. 1959).
Wrongful death and survival actions are separate actions but nonetheless they are cumulative and not alternative, and the two actions may not overlap or result in a duplication of damages, thereby compelling the tortfeasor to pay more than the maximum damages caused byhis negligent act. These principles are so well established as to need but small citation of authority. The trial judge must charge the jury in accordance with these principles as he did in effect here. See Suders v. Campbell, 73 F.Supp. 112 (D.C. Pa.1947), and Stafford v. Roadway Transit Co., 70 F.Supp. 555 (D.C.Pa. 1947), motion refused D.C., 73 F.Supp. 458, affirmed in pertinent part and reversed in part on other grounds, 165 F.2d 920 (3 Cir. 1948). It would appear therefore-that a wrongful death action and a survival action, both being statutory creations, and the right to damages thereunder being parts of the whole substantive rights created by the respective statutes, the two statutes together have created a kind of legal hybrid, Siamese twins of the Pennsylvania law, joined together by the nexus of damages. In this respect a recovery under one statute in effect sets up the equivalent of what may justly be termed a compulsory counterclaim of the kind recognized under Rule 13(a) of the Federal Rules of Civil Procedure, in respect to recovery under the other statute, when both the wrongful death action and the survival action are brought in a single suit in a United States court. True, the case at bar is not like Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933), where the assertion of a substantial federal cause of action sustained the jurisdiction of the court in respect to a non-federal cause, or like Taussig v. Wellington Fund, Inc., 313 F.2d 472, (3 Cir. 1963), where it was asserted that a federal right derived from the Investment Company Act of 1940, 54 Stat. 789, 15 U.S.C. § 80a-l et seq., would support a claim of violation of the common law of unfair competition. In Taussig Judge Hastie said, id. 313 F.2d at 475: “Decision on this jurisdictional point is simplified in this case by the fact that the relief sought is the same on both legal grounds. Moreover, this ease does not involve the often vexatious question whether the factual basis for federal statutory relief is substantially different from the factual basis of the asserted common-law right or, as the issue is often stated, whether the suit presents a single cause of action. Here, it is clear that essentially the same facts are relevant whatever the liability-creating law may be. The one issue requiring discussion is whether the asserted federal statutory claim is substantial enough to justify the adjudication of the coupled common-law claim. In other words, the debatable matter is whether federal question jurisdiction is established as a basis for ancillary jurisdiction.
“The leading cases on pendent jurisdiction hold that an actual right to relief under some federal statute need not be established to justify adjudication of the merits of a coupled common-law claim. Hurn v. Oursler, 1933, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148; Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 1938, 305 U.S. 315, 59 S.Ct. 191, 83 L.Ed. 195. The common-law claim must be dismissed only if the coupled federal contention is ‘plainly unsubstantial either because obviously without merit, or “because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.” ’ ” Compare Raybould v. Mancini-Fattore Company, 186 F.Supp. 235 (D.C.Mich.1960). Cf. Sobel v. National Fruit Product Co., 213 F.Supp. 564 (D.C.Pa.1962).
We think that both Hurn v. Oursler and Taussig supply a useful analogy in deciding this aspect of the case at bar. True it is that here the survival action is not federal but is based on diversity and to apply the Hurn v. Oursler principle of pendency where diversity of citizenship rather than a federal question is the basis of jurisdiction is an extension, but one which we think is desirable and should be countenanced by law. Therefore, apart from our holdings under “I” and “II” supra, we conclude the jurisdiction of the plaintiff’s suit based on the Pennsylvania Wrongful Death Act may be sustained on this ground.
The judgment will be affirmed.
. We assume that Borror was appointed administrator pursuant to 20 P.S. § 320.-301 and § 320.305(b) (5). This point lías not been briefed or referred to by the parties.
. 12 P.S. § 1602 provides as follows: “The persons entitled to recover damages for any injuries causing death shall be the husband, widow, children, or parents of the deceased, and no other relatives; and that such husband, widow, children, or parents of the deceased shall be entitled to recover, whether he, she, or they be citizens or residents of the Commonwealth of Pennsylvania, or citizens or residents of any other state or place subject to the jurisdiction of the United States, or of any foreign country, or subjects of any foreign potentate; and the sum recovered shall go to them in the proportion they would take his or her personal estate in case of intestacy, and that without liability to creditors under the laws of this Commonwealth. If none of the above relatives are left to survive the decedent, then the personal representative shall be entitled to recover damages for reasonable hospital, nursing, medical, funeral expenses, and expenses of administration necessitated by reason of injuries causing death.”
. 12 P.S. § 1601 provides as follows: “Whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her life, the widow of any such deceased, or if there be nb widow, the personal representatives may maintain an action for and recover damages for the death thus occasioned.”
. The courts referred to were the Court of Common Pleas, Quarter Sessions, the County Court in Allegheny County, and the Municipal Court in Philadelphia. The act expressly excludes from its application the Orphan’s Court, the tribunals which handle the administration of the estates and the functioning of personal representatives as such.
. The statute is as follows: “Subdivision 1. When death is caused by the wrongful act or omission of any person or corporation, the trustee appointed as provided in subdivision 2 may maintain an action therefor if the decedent might have maintained an action, had he lived, for an injury caused by such wrongful act or omission. The action may be commenced within three years after the act or omission. The recovery in such action is such an amount as the jury deems fair and just in reference to the pecuniary loss resulting from such death, shall not exceed $25,000, and shall be for the exclusive benefit of the surviving spouse and next of kin, proportionate to the pecuniary loss severally suffered by the death. The court then determines the proportionate pecuniary loss of the persons entitled to the recovery and orders distribution accordingly. Funeral expenses and any demand for the support of the decedent, other than old age assistance, allowed by the court having jurisdiction of the action, are first deducted and paid.
“If an action for such injury was commenced by the decedent and not finally'determined during his life, it may be continued by the trustee for recovery of such damages for the exclusive benefit of the surviving spouse and next of kin, proportionate to the pecuniary loss severally suffered by the death. The court on motion shall make an order allowing such continuance and directing pleadings to be made and issues framed as in actions begun under this section.
“Subd. 2. Upon written petition by the surviving spouse or one of the next of kin, the court having jurisdiction of an action falling within the provisions of subdivision 1, shall appoint a suitable and competent person as trustee to commence or continue such action and obtain recovery of damages therein. The trustee, before commencing his duties shall file his consent and oath. Before the trustee shall receive any money, he shall file a bond as security therefor in such form and with such sureties as the court may require.
“Subd. 3. This act shall not apply to any death or cause of action arising prior to its enactment, nor to any action or proceeding now pending in any court of the State of Minnesota. As amended Laws 1951, c. 697, § 1; Laws 1955, c. 407, § 1; Laws 1957, c. 712, § 1.”
. The trial judge stated at the beginning of his charge: “Members of the jury, it is now your responsibility to decide from the evidence in this case whether the plaintiff is entitled to compensation from the defendant for damages alleged to have been sustained and if so how much.”, and “[T]he plaintiff in this case is the administrator of the estate of Bonita Ann Curtieian. He is bringing this suit on behalf of her parents and also in behalf of her estate.
“If you find that the administrator is entitled to recover in the case, you will divide your total verdict into two parts; one part
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_usc1
|
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.
FARRIN et al. v. HARLOW.
No. 5813.
Court of Appeals of the District of Columbia.
Argued Oct. 4, 1933.
Decided Nov. 6, 1933.
James A. O’Shea,. John H. Burnett, and Alfred Goldstein, all of Washington, D. C., for appellants.
Leo P. Harlow and M. H. Lynn, both of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
MARTIN, Chief Justice.
An appeal from a judgment in favor of the appellee as defendant below entered upon a verdict directed by the lower court at the close of plaintiffs’ evidence.
The case was begun in the lower court by the appellants Loretta Farrin and John J. Panin, her husband, as plaintiffs, against the administrator of the estate of Patrick M. Mc-Mullin, deceased, for recovery of a judgment for services alleged to have been rendered to the decedent.
The plaintiffs alleged that from the year 1918 up to and including June 13, 1929, the date of the death of decedent, they, at the special instance and request of the decedent, performed certain services for him for which decedent promised and agreed to pay to plaintiffs the reasonable and fair sum and price thereof at the date of his death, the services and price thereof being as follows, to wit: Nursing and attending decedent from January 1,1918, 208 weeks at $12 per week; from August 25, 1923, to September 1, 1928, and from February 1, 1924, to April 1, 1924, nursing and attending decedent night and day, 257 weeks at $25 per week; from September 1,1928, to February 23,1929, nursing and attending decedent who was suffering from a stroke, 24 weeks at $40 per week; from February 23, 1929; to June 14, 1929, nursing and attending decedent, 16 weeks at $50 per week; aggregating the total sum of $11,121. The plaintiffs alleged that, no part of this sum had ever been paid to them by decedent, nor by bis estate, and that the same remained wholly unpaid; wherefore they prayed judgment against the defendant as administrator.
The defendant for his plea alleged: “The supposed cause of action by plaintiffs in their declaration mentioned is founded upon a simple contract and that the same did not accrue to the said plaintiffs at any time within three years next before the commencement of this action.” The defendant also alleged that for want of knowledge he could neither admit nor deny the allegations of the declaration in respect to the alleged services and called for strict proof thereof; he denied that the reasonable and fair price for such services was in the sum of $11,121 as alleged by the plaintiffs; he denied that decedent promised and agreed to pay the plaintiffs the reasonable and fair sum and price at the date of his death or at any other time; and denied that decedent was ever requested by plaintiffs to pay such sum or any sum whatever. The defendant moreover alleged that whatever services were performed for decedent by tbe plaintiffs, or either of them, were performed in consideration of decedent allowing and permitting plaintiffs to occupy or make their home in decedent’s residence, by reason of which he was not, nor is his estate, indebted to the plaintiffs in the sum of $11,131, or in any sum whatsoever.
The issue was tried to the jury and upon the conclusion of plaintiffs’ evidence the court upon motion directed a verdict for the defendant which was duly entered with judgment thereon. From this judgment the present appeal was taken.
The decision of the trial justice was based upon his finding that the evidence submitted by the plaintiffs in the case fell “far short” of establishing the cause of action set out in their declaration.
Under the issues made by the pleadings the burden was upon the plaintiffs to introduce evidence substantially tending to show that they had performed for the decedent the services set out in their declaration or some part thereof; that the services were rendered under a special contract entered into by the plaintiffs and the decedent; and that in and by the contract the decedent had promised to pay the reasonable value of such services to the plaintiffs at the time of his death.
It was not claimed by the plaintiffs that any written contract for such services or for the payment thereof was ever executed by and between the plaintiffs and the decedent in his lifetime. Nor was any evidence offered on behalf of the plaintiffs tending to prove any oral conversation between the decedent and themselves or other parties constituting an agreement of any kind in relation to such services. The plaintiffs, however, undertook to prove the making of the contract sued upon by showing the services which they had in fact rendered to the decedent in his lifetime, the circumstances and conditions under which they were rendered, and declarations made by the decedent to other persons in respect to his purpose to compensate plaintiffs therefor at the time of his death. The question arises whether the evidence in that behalf was sufficient to require the lower court to submit the ease to the jury.
It appears from the record that in the year 1015 the decedent, who was a single man, was the owner of a residence property in the city of Washington, D. C.; that some time in that year the plaintiffs moved into the decedent’s house and the parties occupied the house together. There were six rooms in the house, the decedent occupied the back room and the plaintiffs the rest of the house; the decedent boarded with the plaintiffs and paid them for his board; the plaintiffs paid no rent to decedent for the house. The parties were not related to one another in any manner, but from 1915 until the time of decedent’s death they continued this arrangement, first in the house into which they moved in 1915, and afterwards in another residence property owned by the decedent into which they moved in 1923. In the second house, as before, the decedent occupied a back room, while the plaintiffs occupied the rest of the house. The relations between the parties continued in the same manner from the year 1915 up to the time of decedent’s death in June, 1929. At the time in 1915 when this arrangement was begun the decedent worked for the Hecht Company. He continued to work at this or other employment, with some intermissions, until the year 1928, when he suffered from a stroke. In the year 1918 Mrs. Farrin left her employment and gave her time to her household duties and the care of decedent. During the entire time when the parties occupied the same house Mrs. Farrin continually performed many services for the decedent in the way of preparing a special diet for him, and of nursing him at times when he was suffering from serious ailments, and in the year 1923 when decedent suffered from a broken leg, sustained in an automobile accident; that her services were rendered with great kindness and were of great value, and the decedent appreciated them and spoke of them with gratitude on various occasions. At one time he said to a witness, “I will never forget her. She has been a good faithful woman to me. I am going to take care of her. I am going to actually, Will — I am actually going to take care of her. I am going to deed her this house for her life.” It may be noted that the word “Will” in this testimony has no reference to any testamentary disposition of property, but was the name of the party addressed. On another occasion the decedent said to a wit-, ness, “She (Mrs. Farrin) had been a nurse and a very good cook and a very good housekeeper, and that she had also seen after his clothes and those things, and he said for those things he expected to see that she was provided for.” To another witness he spoke of his ill health and said that he could not get along if it were not for the care shown by Mrs. Farrin, and several times he stated that her care was better for him than all the doctors in town. To a colored servant he said, “When I am gone, this is Boss’s happy home,” referring to Mrs. Farrin. To another person he said, “If it were not for this girl here, God knows what I would do. I am a very sick man. Nothing that I can ever do or ever would do will ever repay her for what she has done for me.” To another witness he said that Mrs. Farrin had always been a wonderful nurse to him, that is, from the very start, and that he would remember her for it; his words being, “I will remember her for it.” After the decedent’s death there was found upon his chiffonier a picture of his mother in which was a paper on which was written in his handwriting: “Forgive me for my action, but I cannot stand it no longer. God bless you, my darling. So goodbye. Property for life. It is my desire that the property be given to Mrs. Farrin, all letter — to the contrary, for her kindness and goodness to me. Patrick McMullen.”
On the baek of this paper, also in his handwriting, -was written: “Desire that third — (illegible word) he given to Mrs. Farrin, to make whatever use she desires to make. Please comply with this wish when I am gone. Goodbye to Loretta and David. God bless you, and David, take good care of Loretta.”
It is contended by the appellants that the proof of these circumstances and of the decedent’s declarations was sufficient to establish that the services rendered by Mrs. Farrin to the decedent in his lifetime were mutually agreed and understood by both parties to be rendered for pay, and that payment therefor was to be made by decedent in his will.
We agree with the lower court that this evidence was not sufficient to establish plaintiffs’ claim. While there was no blood or marital relationship between the Farrins and decedent, they nevertheless lived together for fourteen years after the manner of a single family. In the beginning of this period the services required by MeMullin, if any, were slight, and it is improbable that any contract would have been made at that time by him promising to pay therefor at the time of his death. A feeling of kindness and good will existed between the Farrins and decedent and there is no competent proof of any communication between them concerning payment to he made for such services. The circumstances tend rather to show that these services were rendered from a sense of kindness and good will toward the decedent, and perhaps with the hope and expectation that the day might come when he would return some benefit to them in recognition thereof. The decedent himself also had this in mind, and when his end approached he undertook to make a voluntary gift to Mrs. Farrin in recognition of her services. This, however, does not appear to have been done as the result of any contract between them but rather out of mutual kindness, affection, and good will. The testimony when considered in its legal aspect therefore fails to establish the existence of any contract between the parties, but discloses a relationship like that between members of the same family in which help was extended by one to (another without a contract of employment between them and without any binding obligation for compensation. Whatever expectations Mrs. Farrin may have entertained with respect to a return for her services resulted from this relationship and this sentiment rather than any legal contract between them.
The lower court therefore was justified in directing a verdict for the defendants, and this conclusion makes it unnecessary for us to discuss the various questions arising upon the admission or rejection of evidence contained in the record. The judgment of the lower court is affirmed, with costs.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNITED STATES of America, Appellant, v. Torrance HENDERSON, Appellee.
No. 82-2471.
United States Court of Appeals, Eighth Circuit.
Submitted June 17, 1983.
Decided Oct. 26, 1983.
Robert G. Ulrich, U.S. Atty., J. Whitfield Moody, Asst. U.S. Atty., Kansas City, Mo., for appellee.
Ronald L. Hall, Asst. Federal Public Defender, W.D. Missouri, Kansas City, Mo., for appellant.
Before BRIGHT, JOHN R. GIBSON and FAGG, Circuit Judges.
JOHN R. GIBSON, Circuit Judge.
Appellant Torrence Henderson was found guilty of participating in the armed robbery of the United Missouri Bank South in violation of 18 U.S.C. § 2113(a) and (d) (1982). He was sentenced to twenty-five years in prison. On appeal, he argues that the district court erred in denying his motion to suppress the in-court identification of him by witness Harold Shaffer which he claims was tainted by a suggestive pretrial photographic showup. We affirm.
Three armed masked men robbed the United Missouri Bank South about 5:40 p.m. on June 25, 1982. At approximately 5:00 p.m. that afternoon, two black males approached Harold Shaffer in his car and offered him five dollars if he would jump-start their car. Shaffer agreed and the three departed in his car ostensibly to locate the disabled vehicle. After a short ride, Shaffer was forced out of the automobile at gunpoint and the two men drove off. The car was used in the bank robbery and later abandoned.
Shaffer immediately reported the theft and described his assailants to the responding officer. He gave a second description at the police station two hours later. Following this second description, Shaffer looked at some mug books but was unable to make an identification. He next examined a photographic lineup containing five pictures, including one of Henderson. Again, no identification was made. Shaffer was then shown a single photograph of Henderson which he positively identified. Later that same evening, he identified Henderson for a second time in a lineup.
Henderson filed a pretrial motion to suppress all identifications made by Shaffer, including the anticipated in-court identification. In denying the motion, the court did not determine the admissibility of Shaffer’s two out-of-court identifications of Henderson because the government had decided to rely exclusively on his anticipated in-court identification. In admitting the in-court identification, the court concluded that “[w]e cannot say as a matter of law that his anticipated in-court identification was tainted by the out-of-court identification procedures followed by the police.” The court also made it clear that both cross-examination of Shaffer and final argument would provide Henderson’s counsel with the opportunity to convince the jury that the accuracy of Shaffer’s in-court identification was suspect in light of the suggestive photographic showup. At trial, Shaffer identified Henderson as one of the persons involved in the theft of his car. On cross-examination, Henderson’s lawyer fully explored the circumstances surrounding the use of the photographic showup and the out-of-court identification.
Due process challenges to convictions based on in-court identifications which follow a suggestive out-of-court confrontation are reviewed under a two-step test. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States v. Manko, 694 F.2d 1125 (8th Cir.), cert. denied, U.S. -, 103 S.Ct. 1224, 75 L.Ed.2d 460 (1983). The first step is to determine whether the challenged confrontation between the witness and the suspect was “impermissibly suggestive.” Simmons, 390 U.S. at 384, 88 S.Ct. at 971. If so, the second inquiry is whether, under the totality of the circumstances of the case, the suggestive confrontation created “a very substantial likelihood of irreparable misidentification.” Manson, 432 U.S. at 116, 97 S.Ct. at 2254. This test reflects the fact that not all impermissibly suggestive confrontations give rise to a very substantial likelihood of irreparable misidentification. Ruff v. Wyrick, 709 F.2d 1219 (8th Cir.1983) (per curiam); United States v. Love, 692 F.2d 1147 (8th Cir.1980). Those identifications which are reliable — where the witness’s perception of the suspect unaided by the suggestive confrontation provided a sufficient foundation for the identification — are admissible. Reliability is determined by examining
the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.
Manson, 432 U.S. at 114, 97 S.Ct. at 2253 (citing Neil v. Biggers, 409 U.S. 188 at 199-200, 93 S.Ct. 375 at 382, 34 L.Ed.2d 401 (1972)).
The first step is to determine if the photographic showup was impermissibly suggestive. While showups are “the most suggestive, and therefore the most objectionable method of pre-trial identification,” United States v. Cook, 464 F.2d 251, 253 (8th Cir.) (per curiam), cert. denied, 409 U.S. 1011, 93 S.Ct. 457, 34 L.Ed.2d 305 (1972), whether or not they are impermissibly suggestive depends on the circumstances surrounding their use.
In the present case, the surrounding circumstances aggravated the inherent suggestiveness of the showup. Shaffer overheard police radio broadcasts which caused him to conclude that the persons who stole his car immediately used it to rob a bank. Once at the police station, he overheard that two women had acknowledged who the two suspects were. The police then told Shaffer that they were going to bring in the two suspects identified by the women and that he should remain at the station for a possible identification. Finally, Shaffer testified that the police asked him “was this one of the bank robbers, the man that took [your] car” when they presented Henderson’s picture to him for identification. Trial Record (I) at 89. Given these events, Shaffer could not help but expect that the photographs he was about to examine were of the named bank robbery suspects, which he had already concluded were the same persons who stole his car. Combined with the showup’s intrinsic suggestiveness, these events created an impermissibly suggestive confrontation. Simmons, supra; Styers v. Smith, 659 F.2d 293 (2d Cir.1981).
Despite the impermissibly suggestive showup, however, we conclude that Shaffer’s in-court identification of Henderson was reliable. First, Shaffer had ample opportunity to view Henderson. Shaffer spoke with him and his companion face to face for one or two minutes prior to entering the car. Once in the car, Shaffer and Henderson were together in the front seat for five to ten minutes. Shaffer was wearing his glasses. It was five o’clock in the afternoon, thus providing adequate lighting, and Henderson did not conceal his features in any manner. Second, Shaffer focused at least a normal degree of attention on Henderson during this time. Shaffer was not a bystander or casual observer. Moreover, because he was unaware of Henderson’s criminal intent until the very end of their journey, his perceptions were not “clouded by the excitement of the [crime].” Hadley, 671 F.2d at 1115. Third, Shaffer’s descriptions of Henderson were sufficiently accurate. He overestimated Henderson’s height by 2-4 inches, his weight by 25-35 pounds, and underestimated his age by 4-8 years. We do not consider these deviations substantial. Shaffer did fail to mention Henderson’s moustache and beard in both descriptions to the police. While this is a significant omission, it is not weighty enough to undercut the overall reliability of Shaffer’s identification. Fourth, all three of Shaffer’s identifications of Henderson— the showup, the lineup and in court — were certain and without mistake. Fifth, only hours separated the theft of the automobile and the showup. This short span of time decreases the likelihood that the witness is remembering the “person in the photograph more readily than the appearance of the person who committed the crime.” United States v. Dailey, 524 F.2d 911, 914 (8th Cir.1975) (photograph shown to witness a month and a half after the crime).
Appellant claims that the district court’s statement that a motion to suppress the out-of-court identification alone “would likely have been granted” necessarily implies that the district court believed that the out-of-court identification was unreliable, i.e., it resulted from an impermissibly suggestive confrontation which created a very substantial likelihood of irreparable misidentification. From this conclusion, appellant argues that the subsequent in-court identification must also be suppressed because it was the product of an inadmissible identification and cannot be any more reliable than it. By admitting the in-court identification, appellant claims that the district court misapplied the Manson standard.
We do not agree with appellant’s reading of the district court’s order. The court’s ruling was based on the government’s commitment to rely solely on the in-court identification, and the statement cited by the appellant, read in this light, is dictum. Second, in spite of its language, the district court did not conclude that the out-of-court identification created a very substantial likelihood of irreparable misidentification. The statement contains no findings that the out-of-court identification was unreliable, but was only an expression of the court’s inclination which was not fully developed. We cannot conclude that such a statement is a bar to the testimony of Shaffer in open court which identified Henderson. The evidence was for the jury to weigh.
In balancing the reliability of the in-court identification with the “corrupting effect” of the photographic showup, we conclude that the witness possessed a foundation for the identification independent of the suggestiveness of the photographic showup. The conviction is affirmed.
. The Honorable Joseph E. Stevens, Jr., United States District Judge for the Western District of Missouri.
. A showup occurs when “a single person is presented as a suspect to a viewing eyewitness.” United States v. Sanders, 547 F.2d 1037, 1040 (8th Cir.1976), cert. denied, 431 U.S. 956, 97 S.Ct. 2679, 53 L.Ed.2d 273 (1977).
. The Honorable John W. Oliver, Senior United States District Judge for the Western District of Missouri.
. A showup may be justified if the witness’s health prevents his or her participation in a lineup, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), or if the police cannot arrange a lineup because they cannot locate persons sufficiently resembling the suspect, Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Conversely, using the suspect’s photograph to refresh a witness’s memory immediately prior to an in-court identification is impermissibly suggestive, Ruff v. Wyrick, 709 F.2d 1219 (8th Cir.1983) (per curiam); United States v. Dailey, 524 F.2d 911 (8th Cir.1975), as may be a showup motivated by “bad faith or excessive zeal.” United States v. Hadley, 671 F.2d 1112, 1115 n. 2 (8th Cir. 1982). The need for quick and efficient police investigations and arrests, Sanders v. Wyrick, 640 F.2d 186 (8th Cir. 1981) (per curiam), and the desire to release persons mistakenly apprehended, Allen v. Estelle, 568 F.2d 1108 (5th Cir. 1978), may offer some justification for a showup.
. Shaffer admitted that he “wasn’t paying particular attention” to Henderson as they stood outside the car and that he “just didn’t see any reason to be observant.” Supp.H. Record at 58. Henderson also claims that Shaffer’s preoccupation with driving the car necessarily implies that he focused only minimal attention on him. We are satisfied, however, that while these considerations may refute any heightened sensibility of Shaffer as to the surrounding events, he retained a normal degree of attention adequate to establish a basis for a reliable identification.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_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.
Lloyd BIGGLE, Jr. and Damon Knight, Plaintiffs-Appellants, v. HARPER & ROW PUBLISHERS, INC., A Delaware Corporation, Defendant-Appellee.
No. 80-1579.
United States Court of Appeals, Sixth Circuit.
Argued Feb. 5, 1982.
Decided March 31, 1982.
Alex Berman, Kozlow, Woll, Crowley & Berman, Southfield, Mich., for plaintiffs-appellants.
Wallace Handler, Snyder & Handler, Birmingham, Mich., Alfreida B. Kenny, Harper & Row Publishers, Inc., New York City, for defendant-appellee.
Before LIVELY and KEITH, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
LIVELY, Circuit Judge.
In this diversity action the district court granted summary judgment for the defendant on one count of the complaint and certified the case for immediate appeal pursuant to Rule 54(b), F.R.Civ.P. The question in the case is whether certain writings relied upon by the plaintiffs were sufficient to satisfy the requirements of the statute of frauds. The district court held that the writings were not sufficient and dismissed the plaintiffs’ breach of contract claim.
I.
The plaintiffs Biggie and Knight approached the defendant Harper & Row with the idea of publishing an anthology of science fiction stories which would be used primarily in high school and college courses. The entire anthology as proposed was to consist of eight volumes and a teacher’s manual. In discussions with the plaintiffs, Hugh Van Dusen, the senior editor in charge of Harper & Row “Perennial Paperback” books, suggested that a series of four rather than eight volumes might be preferable. Nevertheless, on May 16, 1975 Van Dusen sent an inter-office memorandum to Elizabeth Jakab, an editor of the Perennial Paperback books, in which he stated, “I talked to Biggie and agreed to do the 8 books.” The memorandum also stated, “We need a separate contract for each book . . .,” and contained directions for forwarding contracts to the plaintiffs and terms of payment of advances. The memorandum was typed and unsigned. It was from “Hugh” to “Elis” and referred to “Damon Knight and Lloyd Biggie Science Fiction Project.” It is reproduced in full as Appendix Exhibit A to this opinion.
On June 2, 1975 Elizabeth Jakab wrote Lloyd Biggie a letter in which she enclosed “the first of the contracts that will be coming from us for the volume tentatively entitled YESTERDAY PLUS TWO.” On July 28, 1975 Ms. Jakab wrote to Biggie acknowledging receipt of three contracts, identified by titles, and forwarding three additional contracts covering different volumes,' again identified by title. In this letter Ms. Jakab noted that there were two more contracts to come. All of the contracts were prepared by Harper & Row and those covering four of the volumes were executed by the plaintiffs and by a representative of Harper & Row. The contracts for three other volumes were signed by the plaintiffs and returned to the defendant, but were never signed on its behalf.
Harper & Row issued an announcement of the forthcoming publication of THE SCIENCE FICTION UNIVERSE which identified Knight and Biggie as the editors. It described the publication as “a complete science fiction textbook in eight topically oriented paperback volumes.” The title of volume one — YESTERDAY PLUS TWO— was given and the contents of volumes two through eight were described. This announcement is reproduced as Appendix Exhibit B to this opinion.
On November 12, 1975, after four contracts had been executed by all parties and three others had been prepared by the defendant and executed by the plaintiffs and returned to the defendant, Elizabeth Jakab wrote a letter to Lloyd Biggie which opened with a question:
Do you think you and Damon might be able to pack the Science Fiction Universe into four volumes instead of eight? I know this is a rather staggering request, but truly it is less so than it sounds at first.
Biggie responded at length, giving various reasons for insisting that the series contain eight rather than four volumes. Eventually Van Dusen wrote Biggie on December 22,1975 that Harper & Row would be “happy to try the first four volumes as a test,” but if the plaintiffs would rather go with eight volumes, “the only advice we can offer is that you try another publisher who can see the project your way.” This lawsuit followed.
II.
A.
The parties agree that the New York statute of frauds is applicable to their agreement. The statute provides:
Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking:
1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime ....
New York General Obligations Law, Section 5-701 (McKinney 1979).
The district court found that the plaintiffs had shown by the four fully executed contracts that a contractual relationship existed between them and the defendant. However, it found the execution of separate contracts to be inconsistent with an agreement that all eight volumes would be published. The four executed contracts were deemed to relate only to individual volumes, not to the entire anthology. The unsigned memorandum from Van Dusen to Ms. Jakab was held insufficient to establish the “underlying relationship regarding, the anthology as a whole.” In concluding that the plaintiffs failed to show the presence of “the essential core document,” the district court did not refer to the November 12, 1975 letter which was signed by Ms. Jakab or the December 22, 1975 letter which was signed by Van Dusen. In both of these letters the anthology was referred to as “the Science Fiction Universe.” In their complaint the plaintiffs alleged that the contract with Harper & Row called for the “publication, promotion and sale of a series of eight volumes of books the nature of which was a science fiction anthology to be entitled The Science Fiction Universe.” (Underlining in complaint).
B.
The parties and the district court placed principal reliance upon the decision of the Court of Appeals of New York in Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48, 110 N.E.2d 551 (1953). We agree that Crabtree controls. In Crabtree the plaintiff claimed that he was hired as sales manager of a cosmetics firm for at least two years. He had sought a three-year contract at a fixed salary. During negotiations, which were primarily conducted by Robert P. Johns, the general manager of the defendant corporation, Miss Arden, the president, made an offer of a two-year contract with salary increases at the end of the first six months and of one year. A memorandum was typed by Miss Arden’s secretary reflecting this offer. The unsigned memorandum was as follows:
Employment Agreement with
Nate Crabtree Date Sept. 26 — 1947
At 681 — 5th Ave 6: PM
* * *
Begin 20000.
6 months 25000.
6 " 30000.
5000. — per year Expense money
[2 years to make good]
Arrangement with Mr. Crabtree
'By Miss Arden '
Present Miss Arden
Mr John
Mr Crabtree
Miss OLeary
110 N.E.2d at 552.
Crabtree notified the defendant that he accepted “the invitation to join the Arden organization” and when he reported for work a payroll card was prepared by general manager Johns who initialed it before forwarding it to the payroll department. This card showed the names of the parties, Crabtree’s job classification and the salary for the first six months, the second six months and after one year. The salary was increased after six months, but Miss Arden refused to approve the increase which the memorandum called for at the end of one year. However, a payroll change card was prepared and signed by the comptroller noting a salary increase from $25,000 to $30,-000 per year, “per contractual arrangements with Miss Arden.” Miss Arden again refused to approve the increase and Crab-tree brought suit for breach of contract. The defendant denied the existence of any agreement to employ Crabtree for two years, and pled the statute of frauds as a bar to enforcement if the court should find that an agreement had been made. The trial court upheld the plaintiffs’ contentions and awarded damages. The Appellate Division affirmed and the question addressed by the New York Court of Appeals was whether there was a memorandum of the terms of the contract, subscribed by the defendant sufficient to satisfy the requirements of the New York statute of frauds.
The court of appeals affirmed the judgment for Crabtree upon the basis of its finding that the two payroll cards which were signed and the unsigned memorandum, when considered together, constituted a memorandum under the statute of frauds. The two signed documents were found to establish the existence of a contractual relationship and to set forth all the terms of the contract except one- — the duration of Crab-tree’s employment. The notation on the unsigned memorandum, “2 years to make good,” was found sufficient to establish the period of employment. The court adopted a rule that signed and unsigned writings may be read together so long as they clearly refer to the same subject matter or transaction. The holding and rationale of the court were summarized as follows:
The language of the statute — “Every agreement * * * is void, unless * * * some note or memorandum thereof be in writing, and subscribed by the party to be charged”, Personal Property Law, § 31— does not impose the requirement that the signed acknowledgment of the contract must appear from the writings alone, unaided by oral testimony. The danger of fraud and perjury, generally attendant upon the admission of parol evidence, is at a minimum in a case such as this. None of the terms of the contract are supplied by parol. All of them must be set out in the various writings presented to the court, and at least one writing, the one establishing a contractual relationship between the parties, must bear the signature of the party to be charged, while the unsigned document must on its face refer to the same transaction as that set forth in the one that was signed. Parol evidence — to portray the circumstances surrounding the making of the memorandum — serves only to connect the separate documents and to show that there was assent, by the party to be charged, to the contents of the one unsigned. If that testimony does riot convincingly connect the papers, or does not show assent to the unsigned paper, it is within the province of the judge to conclude, as a matter of law, that the statute has not been satisfied.
110 N.E.2d at 554.
In its Crabtree opinion the court referred several times to its earlier decision in Marks v. Cowdin, 226 N.Y. 138, 123 N.E. 139 (1919). Speaking for the court in Marks, Judge Cardozo wrote, “The memorandum exacted by the statute does not have to be in one document. It may be pieced together out of separate writings, connected with one another either expressly or by the internal evidence of subject-matter and occasion.” 123 N.E. at 141 (citations omitted). Thus, the process which has been referred to as considering a “confluence of memoranda,” Babdo Sales, Inc. v. Miller-Wohl Co., 440 F.2d 962, 966 (2d Cir. 1971), has long been recognized by the courts of New York as a proper means to avoid pressing the statute of frauds “to the extreme of a literal and rigid logic.” Marks v. Cowdin, supra, 123 N.E. at 141.
III.
The district court erred in concluding that the memoranda relied upon by the plaintiffs in this case did not satisfy the requirements of the New York statute of frauds. Referring to O’Keeffe v. Bry, 456 F.Supp. 822 (S.D.N.Y.1978), the district court held that the plaintiffs had failed to establish the existence of “the essential core document.” In reaching this conclusion the district court either misread Crabtree and O’Keeffe or overlooked the letter of November 12th from Elizabeth Jakab to Lloyd Biggie. In O’Keeffe the court held that “a core document evidencing a promise” must be present and that additional documents may be permitted to supply essential terms of the agreement, but “not to piece together the existence of the agreement itself.” 456 F.Supp. at 829. Though the Crabtree court did not use the term “core document” it stated that “at least one writing, the one establishing a contractual relationship between the parties, must bear the signature of the party to be charged, while the unsigned document must on its face refer to the same transaction as that set forth in the one that was signed.” 110 N.E.2d at 554.
The district court found that the four signed contracts could not serve as the “core” document because each related only to a single volume rather than to the anthology as a whole. Nevertheless, these four signed documents unquestionably demonstrated the existence of “a contractual relationship between the parties .... ” Crabtree, supra, 110 N.E.2d at 554. In fact, the district court agreed that they did establish the existence of the relationship, but found them inconsistent with a claim that the anthology was to contain eight volumes. That this contractual relationship involved the publication of more than one volume is demonstrated by the very existence of separate contracts which refer to four volumes by name. The letter of November 12th refers to the anthology by name, “Science Fiction Universe” and broaches the question of whether the plaintiffs “might be able to pack” it into four volumes rather than eight. Taken together the signed documents establish that there was a contractual relationship between the parties, that it involved the publication'of an anthology to be known as “Science Fiction Universe,” to consist of several volumes, with the royalty and other terms including advances against royalties set forth in identical language in each of the four signed contracts.
There was no signed document which stated the exact number of volumes to be included in the anthology. However, the unsigned inter-office memorandum identified the “Science Fiction Project” and contained the statement that Van Dusen had talked with Biggie “and agreed to do the 8 books.” In addition, this memorandum explained why separate contracts were being prepared for each volume. Further, the unsigned publication announcement identified the anthology by name and the first volume by title, and described the series as “a complete science fiction textbook in eight topically oriented paperbound volumes.” Both of the unsigned documents qualified under the Crabtree test to be read together with the signed ones since they “clearly refer to the same subject matter or transaction.” 110 N.E.2d at 554. Thus in the language of Marks v. Cowdin, supra, 128 N.E. at 141, quoted in Crabtree, 110 N.E.2d at 553, the plaintiffs relied upon a memorandum which “may be pieced together out of separate writings, connected with one another either expressly or by the internal evidence of subject-matter and occasion.”
It was error to grant summary judgment for the defendant on the basis of the New York statute of frauds. We express no opinion on the merits of the plaintiffs’ claim for breach of contract. However, they are entitled to a trial on this claim. We do not consider any of the other issues raised by the parties. The district court based summary judgment squarely on the statute of frauds and its Rule 54(b) certification presents that issue only on appeal. The judgment of the district court is reversed, and the case is remanded for further proceedings. The plaintiffs will recover their costs on this appeal.
APPENDIX
Exhibit A
HARPER & ROW, PUBLISHERS MEMORANDUM
To: Elis Date: 5/16
From; Hugh
Damon Knight and Lloyd Biggie
Science Fiction Project
I talked to Biggie and agreed to do the 8 books.
1) We need a separate contract for each book, so that they can cope with their accounting to authors
2) The contracts are with Biggie and Knight. You have Biggie’s address and Lynn can give you Knight’s.
3) Contracts to be sent to Knight.
4) Advance half on sig and half on acceptance of each
Exhibit B
HARPER & ROW
Perennial Library
Announce the Forthcoming Publication of THE SCIENCE FICTION UNIVERSE
Edited by Damon Knight and Lloyd Biggie, Jr.
A Complete Science Fiction Textbook in Eight Topically Oriented Paperback Volumes.
Specifically designed for use in high schools and lower-division college classes, the stories are graded according to the degree of difficulty of the ideas involved. A TEACHER’S MANUAL, written by the Editors and Marshall Tymn, will also be available. Together with the Editors’ Notes, this manual will enable teachers to organize their courses to best meet the needs and capabilities of their students. Volume I — YESTERDAY PLUS TWO.
To be published early in 1976, this volume contains stories grouped around two units of study:
All in a Day’s Work (and Play). Demonstrates the impact of science technology, and the future on man’s work and daily life.
Don’t Blame Necessity. Inventions dangerous and otherwise. The stories are chosen to provide an understanding of aspects of the physical universe.
Volumes 2 through 8 will become available during the rest of 1976 and early 1977. They will each contain one or more of the following units:
Machine Bites Man. The battle between men and machines and man’s struggle to use machines rather than be used by them. This unit functions as an introduction to modern technology, computers, and automation and inevitably leads to a serious evaluation of what the machine has done for us — and to us.
Elixirs of Life and Death. Stories concerning drugs. As with machines, man’s problem is to use them to his advantage rather than to his detriment. The Powers. Stories about extraordinary beings and extraordinary forces. This unit provides an introduction to extrasensory perception and parapsychology and deals with the question of how far or how little one must deviate from the average in order to be more than human — or less.
I’m a Stranger Here Myself. Aliens from outer space and invaders of Earth, in all of their infinite variety. The Many Sides of Now. An introduction to topology that also asks the question: “What is on the other side of a one-sided figure?” This unit introduces the concept of parallel worlds. Time on My Hands. Time travel, forward and backward. Backward time travel is the opening door to paleontology, anthropology, geology, history, and related subjects. Time travel in either direction starkly sets off our twentieth-century selves.
Outward Bound. Two units on space travel and exploration: The Solar System, the Galaxy, and beyond.
The Sound of Trumpets. The Alarms of War. The only thing more terrifying than the last war is the next. Here are science fiction stories about future wars.
Of Worlds Beyond. Stories about alien life on alien worlds, with glimpses of utterly strange scientific, social, and cultural conditions and problems.
The Strangest Universe. Stories about the human mind.
No Fathers to Guide Them. Stories about artificial life.
This Polluted Planet. Stories concerning ecology.
Let’s All Cancel Tomorrow. A bleak view of the future, disturbing and challenging because some of the trends in these stories are already with us.
I Didn’t Think It Would End Like That. From the end of the world to the end of everything.
THE EDITORS
Damon Knight’s achievements span the entire field of Science Fiction: author, magazine and book editor, critic, reviewer, anthologist. Among his dozens of anthologies is the Orbit series, which has contributed a remarkable number of award-winning stories. He was the founder and first president of Science Fiction Writers of America.
Lloyd Biggie, Jr. is the author of nine Science Fiction novels, including the forthcoming This Darkening Universe. His numerous short stories have appeared in all the Science Fiction magazines, as well as in two book collections. He is the editor of Nebula Award Stories Seven, an anthology.
* * *
Marshall Tymn is a well-known bibliographer of Science Fiction and the editor of the forthcoming Checklist of Fantastic Literature, the multivolume Guide to Fantastic Literature, and The Science Fiction Reference Book. He reviews Science Fiction for Choice Magazine and teaches courses in Science Fiction at Eastern Michigan University.
for further information on THE SCIENCE FICTION UNIVERSE write to
Perennial Library, Harper & Row, Publishers, Department 524
10 East 53d Street, New York, New York 10022
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_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.
CHIEFTAIN PONTIAC CORP. et al. v. JULIAN, U. S. Atty.
No 4787
United States Court of Appeals First Circuit.
Argued Jan. 5, 1954.
Decided Jan. 21, 1954.
Thomas W. Lawless, Boston, Mass., for appellants.
James J. Sullivan, Jr., Asst. U. S. Atty., Boston, Mass. (Anthony Julian, U. S. Atty., Boston, Mass., with him on the brief), for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
MAGRUDER, Chief Judge.
We have before us appeals from an order of the district court entered February 27, 1953, dismissing, upon authority of our decision in Centracchio v. Gar-rity, 1952, 198 F.2d 382, certiorari denied 1952, 344 U.S. 866, 73 S.Ct. 108, 97 L.Ed. 672, three pre-indictment petitions for the return of property and for the suppression of evidence. By order of this court the appeals were consolidated and heard upon a single record, since they present the same question,
The petitioners were Chieftain Pontiac Corporation, Clayton B. Luckenbach, and Alvin E. Godshall, officers and sole stockholders of the corporate petitioner.
T ,... , In substance the three petitions al- . . . , leged the following: That respondent n -x i cix o. a xx , , . x-United States Attorney had given notice of intention to present certain evidence to the grand jury to the end that an indictment against petitioners might be obtained for violations of the Internal Revenue Code, 26 U.S.C.A. § 1 et seq., in respect of their income tax returns for the years 1946, 1947 and 1948; that on April 25, 1949, two special agents of the Intemal Revenue Bureau called on petitioners and represented that they were investigating possible income tax violations of a third party and that they desired to examine the books and papers of petitioners with reference thereto; that in a later conversation with said special agents petitioners indicated that there were some irregularities with reference to their own tax returns, and were informed by the said agents of the so-called “voluntary disclosure policy” theretofore announced by the Treasury Department, to the effect that the Commissioner of Internal Revenue does not recommend criminal prosecution in the case of any taxpayer who makes a voluntary disclosure of omissions or other misstatements in his income tax return before an investigation of his income tax liabilities is under way; that the said agenis falsely and fraudulently represented to and assured petitioners that their income tax liabilities were not under investigation by the Treasury Department, and therefore that they were eligible to obtain the benefit of this voluntary disclosure policy; that in fact said special agents then knew, and petitioners did not know, that an investigation of petitioners’ affairs was currently pending, and then intended, in the event of disclosure, to instigate criminal prosecutions against petitioners; that in reliance upon these fraudulent representations petitioners proceeded to make a full and complete disclosure, including a written admission that their income had ^_een understated for the years in question, and^ furnished said government agents a list of all customers during the period involved, all duplicate sales vouch- , . . , ... , ,, ers, cheeks, records and files and other . „ ,. , ,, information necessary to enable the , , , . . .... agents to determine petitioners’ income tax deficiencies; that the turning over of the PaPers and documents, under the circumstances, “was not voluntary but effect was an illegal search and seizure of said papers”; that the papers thus turned over to the government came into the possession of the respondent U. S. Attorney, who was preparing to use the same in obtaining grand jury indictments against petitioners. It was prayed in the petitions that the district court enter an order directing that all
the statements and other material supplied by petitioners to the said agents be suppressed as evidence in any grand jury hearing or other criminal proceedings against the petitioners, and that all of the said papers in the hands of the U. S. Attorney be returned to petitioners-
A full hearing was held on the petitions, at which evidence was taken. The district court, without making specific findings of fact on the conflicting evidence as to whether the Treasury agents had made the fraudulent representations as alleged, did find that petitioners had “voluntarily turned over the evidence and made the disclosures for the purpose of a determination of their income tax liabilities.” In the light of this “indisputable fact” the district court felt obliged to dismiss the pre-indictment petitions on the authority of the Centracchio case, supra.
After the entry of this order of dismissal, petitioners filed in the district court a timely motion to vacate the order and to make findings of fact on the contested issue of fraud In effect what petitioners sought by this motion was a new order by the district court m the opposite sense from the order of dismissal. It was not a motion directed at mere matters of form.
Without waiting for the district court to pass on this motion to vacate, petitioners filed their respective notices of appeal from the original order.
Appellee suggests that the present appeals are premature for the reason that the pendency in the district court of this undisposed-of motion to vacate deprives the order in question of that finality which is essential to appealability. We think that this is so, and that the present appeals will have to be dismissed for lack of jurisdiction. United States v. Crescent Amusement Co., 1944, 323 U.S. 173, 65 S.Ct. 254, 89 L.Ed. 160; Leishman v. Associated Wholesale Elec-trie Co., 1943, 318 U.S. 203, 63 S.Ct. 543, 87 L.Ed. 714.
Just in case we are mistaken on this jurisdictional point, we deem it proper to indicate briefly our view on the merits,
We think that appellants are probably right in insisting that findings 0f fact on relevant issues are required by Rule 52(a) of the Feaeral Rules of Civil Procedure, 28 U.S.C.A., in the case of a pre-indictment petition for the suppression of evidence, since such petition initiates an independent proceeding of a summary character against the U. S. Attorney as an officer of the court, and is tried upon the facts by the court without a jury. Evidently the district court refrained from making a finding of fact on the conflicting evidence as to whether the special agents had made the fraudulent representations as alleged because of the view that, even if such fraud were found as a fact, the disposition of the petitions to suppress would be the same, We agree with that view. The district court in its opinion has found all the facts necessary to a disposition of the case.
In QUr opin¡on in tbe Centracchio case> supra> we tried to indicate our gen_ eral kck of enthusiasm for these peti_ tiong to guppregs evidence) filed at a pre_ indictment stage. We are not disposed to ganction thg uge of guch a remedy ex. cept ^ obedience to the clear mandate of controlling Supreme Court decisions'. The leading cases are cited in our Centracchio opinion. So far as we are aware, the Supreme Court has approved of the use of pre-indictment petitions f°r suppression of evidence only in cases where the evidence came^ into the possession of the authorities in consefiuence of an unlawful search and seizure forbidden by the Fourth Amendment,
Even if the government agents obtained the voluntary disclosures from appellants by the guile of a false representation that no investigation was pending and that appellants were therefore eligible to obtain the benefit of the Treasury’s voluntary disclosure policy, still we think it could not be said that such stratagem constitutes an unreasonable search and seizure within the meaning of the Fourth Amendment. Cases like Gouled v. United States, 1921, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647, are not in point, for there a government agent, under the false pretense of making a social call, gained admittance to the defendant’s office, and in defendant’s absence and without a warrant laid hold of his private papers and carried them
It may be that, quite independent of constitutional requirements, a rule of evidence should be formulated for federal criminal trials to the effect that evidence obtained from the taxpayer by the method alleged should not be admissible against him at a trial on a subsequent indictment. The order now appealed from leaves that question open, for it is expressly stated in the order that the dismissal of the pre-indictment petitions is “without prejudice to the right of the petitioners, in the event of indictment, to raise at some appropriate stage, whether before or during^ the trial, the question as to the admissibility of the evidence disclosed.” In thus specifying that the dismissal should be without prejudice, the district court was merely following what we said in the Centracchio case, 198 F.2d at page 388, that such questions as to the admissibility of evidence which may be produced by the government at some future crimmal trial ought not to be determined by the district court, or by us on appeal, upon petitions like the present ones for the suppression of evidence prior to indictment.
The three appeals from the order of ne District Court are dismissed for lack of jurisdiction.
WOODBURY, Circuit Judge.
I concur in the result and in all that is said in the opinion of the court except that I do not care to commit myself now to the proposition that a search made as a result of a fraudulent misrepresentation would not be an unreasonable search within the meaning of the Fourth Amendment.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_circuit
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Peggy GOLDMAN-FRANKIE, et al., Plaintiffs-Appellees, v. Richard AUSTIN, et al., Defendants-Appellants.
No. 82-1747.
United States Court of Appeals, Sixth Circuit.
Argued Oct. 25, 1983.
Decided Feb. 15, 1984.
Frank J. Kelley, Atty. Gen. of Mich., Michael Moquin, Asst. Atty. Gen., argued, Lansing, Mich., for defendants-appellants.
George Washington, Donald B. Green-spon, Detroit, Mich., argued, for plaintiffs-appellees.
Before JONES and KRUPANSKY, Circuit Judges, and SPIEGEL, District Judge.
Hon. S. Arthur Spiegel, United States District Judge for the Southern District of Ohio, sitting by designation.
KRUPANSKY, Circuit Judge.
This is an appeal from an order of the District Court for the Eastern District of Michigan granting the motion of plaintiffs-appellees for summary judgment and ordering that the name of plaintiff-appellee Peggy Goldman-Frankie appear on the November 2, 1982 ballot as an independent candidate for a seat on the Michigan State Board of Education.
The underlying facts to this controversy are not in dispute. Goldman-Frankie was intent upon becoming an independent candidate for a seat on the Michigan Board of Education in the 1982 election. There were two major obstacles to this endeavor. First, Michigan election laws incorporate no procedure by which an independent candidate may gain access to the ballot although M.C.L.A. § 168.685(1) provides that a “new political party” may obtain ballot access by filing a petition bearing signatures equal to 1% of the number of votes received by the successful candidate for secretary of state at the last election for that office.
The second impediment to Goldman-Frankie’s candidacy was the Mich. Const, of 1963, Art. VIII § 3, which reads in pertinent part:
The state board of education shall consist of eight members who shall be nominated by party conventions and elected at large for terms of eight years as prescribed by law. (emphasis added).
Goldman-Frankie was not a candidate of a qualifying party under § 168.685(1), nor was she nominated by a party convention. Nevertheless, on May 26, 1982, Goldman-Frankie filed a “Declaration of Candidacy” with defendant Richard A. Austin, the Secretary of State of Michigan. Goldman-Frankie was informed by members of the State Board of Canvassers that her name could not be placed on the ballot because state law did not include a procedure for placement of independent candidates on the ballot for the Michigan State Board of Education.
On July 16, 1982, Goldman-Frankie and two persons who declared their intention to vote for her filed a complaint in the United States District Court for the Eastern District of Michigan seeking preliminary and permanent injunctive relief. The complaint named Austin and the members of the State Board of Canvassers as defendants. On August 20, 1982, after expediting review of the merits and entertaining oral argument by the parties, the trial court granted plaintiffs’ motion for summary judgment and ordered the defendants to place Goldman-Frankie’s name on the November 2,1982 ballot. Defendants appealed.
Initially, this Court observes that although the election has been conducted and the vote duly certified, the action is within the purview of the “capable of repetition yet evading review” doctrine. See Storer v. Brown, 415 U.S. 724, 737, n. 8, 94 S.Ct. 1274, 1282, n. 8, 39 L.Ed.2d 714 (1974). Accord: Anderson v. Celebrezze, -- U.S. --, --, 103 S.Ct. 1564, 1567, n. 3, 75 L.Ed.2d 547 (1983).
Counsel for appellants conceded at oral argument that the only procedure available to independent candidates to have their names placed upon the ballot is by court order. The plaintiffs charge that the absence of a reasonable means of access to the ballot violates the Equal Protection Clause.
Plaintiffs’ charge poses no new issue of constitutional law. First, it is settled that restrictions on access to the ballot impinge on the fundamental right to associate for the advancement of political beliefs and the fundamental right to vote. Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979); Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). Pursuant to the fundamental rights strand of equal protection analysis, a State must prove that its limitation “is necessary to serve a compelling interest.” Illinois State Board of Elections v. Socialist Workers Party, supra, 440 U.S. at 184, 99 S.Ct. at 990; American Party of Texas v. White, 415 U.S. 767, 780, 94 S.Ct. 1296, 1305, 39 L.Ed.2d 744 (1974); Williams v. Rhodes, supra, 393 U.S. at 31, 89 S.Ct. at 10. Cf. Anderson v. Celebrezze, supra,-U.S. at --, 103 S.Ct. at 1569, n. 7; Clements v. Fashing, 457 U.S. 957, 962-65, 102 S.Ct. 2836, 2843-45, 73 L.Ed.2d 508 (1982).
Secondly, the Supreme Court has expressly recognized that an independent candidate must be afforded a reasonable opportunity to obtain a ballot position and that the State cannot establish, as a condition precedent to the position, the membership in or formation of a political party. Storer v. Brown, supra. In Storer the State argued that restrictions on independent candidates were inconsequential because the State had provided a valid procedure for newly organized political parties to obtain ballot position. The Supreme Court soundly rejected the argument:
The political party and the independent candidate approaches to political activity are entirely different and neither is a satisfactory substitute for the other. A new party organization contemplates a statewide, ongoing organization with distinctive political character. Its goal is typically to gain control of the machinery of state government by electing its candidates to public office. From the standpoint of a potential supporter, affiliation with the new party would mean giving up his ties with another party or sacrificing his own independent status, even though his possible interest in the new party centers around a particular candidate for a particular office. For the candidate himself, it would mean undertaking the serious responsibilities of qualified party status under California law, such as the conduct of a primary, holding party conventions, and the promulgation of party platforms. But more fundamentally, the candidate, who is by definition an independent and desires to remain one, must now consider himself a party man, surrendering his independent status. Must he necessarily choose the political party route if he wants to appear on the ballot in the general election? We think not.
* * * * * *
[W]e perceive no sufficient state interest in conditioning ballot position for an independent candidate on his forming a new political party as long as the State is free to assure itself that the candidate is a serious contender, truly independent, and with a satisfactory level of community support.
415 U.S. 745-46, 94 S.Ct. 1286-87 (footnote omitted).
Following Storer, several cases arose as a result of the independent candidacy of former Senator Eugene J. McCarthy in his quest for the presidency of the United States, most notably, McCarthy v. Briscoe, 429 U.S. 1317, 97 S.Ct. 10, 50 L.Ed.2d 49 (1976). In Briscoe, Senator McCarthy and several of his supporters challenged the Texas election laws which, like those of Michigan, did not afford an opportunity for an independent to qualify for a position on the ballot for the office of president. The district and appellate courts agreed that the Texas election scheme was unconstitutional but refused to order McCarthy’s name placed on the ballot for fear of disrupting the Texas election process.
Thereafter, McCarthy supporters petitioned Justice Powell for relief in his capacity as a Circuit Justice. Citing Storer v. Brown, supra, Justice Powell stated that “the Court [has] flatly rejected the notion that an independent [can] be forced to seek ballot position by joining or organizing a political party.” McCarthy v. Briscoe, supra, 429 U.S. at 1320, 97 S.Ct. at 12. Accordingly, Justice Powell approved the district court’s characterization of the Texas election laws “as demonstrating an ‘intransigent and discriminatory position’ and an ‘incomprehensible policy’ ”. Id at 1321, 97 S.Ct. at 12. Finally, Justice Powell took judicial notice of Senator McCarthy’s stature as a nationally known figure, his 1968 presidential candidacy and the fact that he had qualified for the ballot in many other states. Justice Powell concluded that these facts demonstrated “the requisite community support” and he therefore ordered that Senator McCarthy’s name be placed upon the Texas ballot.
Justice Powell’s decision in Briscoe was both preceded and followed by lower court decisions declaring unconstitutional state election schemes — including the one in Michigan — which precluded ballot access for Senator McCarthy as an independent candidate. See e.g., McCarthy v. Exon, 424 F.Supp. 1143 (D.Neb.) summ. aff’d, 429 U.S. 972, 97 S.Ct. 479, 50 L.Ed.2d 581 (1976); McCarthy v. Austin, 423 F.Supp. 990 (W.D.Mich.1976); McCarthy v. Tribbitt, 421 F.Supp. 1193 (D.Del.1976); McCarthy v. Askew, 420 F.Supp. 775 (S.D.Fla.1976) aff’d, 540 F.2d 1254 (5th Cir.1976). See also MacBride v. Exon, 558 F.2d 443 (8th Cir.1977); MacBride v. Askew, 541 F.2d 465 (5th Cir.1976).
Despite existing legal precedent, particularly McCarthy v. Austin, supra, wherein the Michigan scheme was expressly declared unconstitutional for its failure to provide independent candidates for public office with a means of access to the ballot, the Michigan legislature continued to ignore the evolving judicial pronouncements as late as the 1980 presidential election. In that election Gus Hall and Angela Davis, running as independent candidates in Michigan for president and vice-president, respectively, were forced to resort to the federal court to obtain ballot position. Hall v. Austin, 495 F.Supp. 782 (E.D.Mich.1980).
Michigan has, to date, failed to remedy the situation. This Court is therefor compelled to again declare, in absolute terms, that the Michigan election laws, so far as they foreclose independent candidates access to the ballot, are unconstitutional.
Defendants urge that, even assuming the election laws are otherwise constitutionally deficient, Goldman-Frankie was not entitled to relief. Defendants assert that the McCarthy precedent is inapposite because those cases involved federal office whereas Goldman-Frankie was seeking a state office and the state constitution, specifically, Art. VIII § 3, mandated party nomination as the vehicle to ballot access for Michigan Board of Education candidates.
The arguments are not persuasive. “Undeniably the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections.” Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 1377, 12 L.Ed.2d 506 (1964). While the State may well have decided to make seats on the Michigan Board of Education appointive positions, thereby removing the voters’ direct impact on the holders, see Sailors v. Kent County Bd. of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967), “once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.” Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665, 86 S.Ct. 1079, 1080, 16 L.Ed.2d 169 (1966); Kramer v. Union Free School District, 395 U.S. 621, 628-30, 89 S.Ct. 1886, 1890-91, 23 L.Ed.2d 583 (1969). See Rodriguez v. Popular Democratic Party, 457 U.S. 1, 10, 102 S.Ct. 2194, 2200, 72 L.Ed.2d 628 (1982); Hadley v. Junior College District of Metropolitan Kansas City Missouri, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970). Hence, Art. VIII § 3, which, in effect, grants to the electorate a franchise to select members of the Michigan Board of Education and then limits that franchise to those who support a party nominated candidate, is unconstitutional.
The defendants’ argument that the lower court and this court are bound by Jones v. Hare, 440 F.2d 685 (6th Cir.) cert. denied, 404 U.S. 911, 92 S.Ct. 237, 30 L.Ed.2d 184 (1971), is not convincing. In Jones, this Court rejected a broad attack on Michigan’s election laws and constitutional provisions including Art. VIII § 3. The Court found the “nominal formation of a so-called ‘political party’ ” a reasonable requirement for gaining access to the ballot. Id., at 686. As the pronouncements of the Supreme Court in Storer v. Brown and its progeny make clear, Jones v. Hare has been overruled.
Finally, we affirm the relief mandated by the district court — ordering Goldman-Frankie’s name on the ballot. McCarthy v. Briscoe, supra. Although Goldman-Frankie’s demonstration of the requisite community support was not compelling, the Court finds it sufficient to warrant the relief granted by the district court.
In accordance with the foregoing, the judgment of the district court must be and hereby is Affirmed. Costs to be borne by the appellants.
. Goldman-Frankie received 28,620 votes.
., Although this Court has applied an Equal Protection analysis in arriving at a decision, the Supreme Court has recognized that ballot access cases are equally cognizable under the First Amendment. Anderson v. Celebrezze, supra, -- U.S. at --, 103 S.Ct. at 1569, n. 7.
. For a more detailed review of the McCarthy litigation, see Armor & Marcus, The Bloodless Revolution of 1976, 62 A.B.A.J. 1108 (1977).
. In 1972 Goldman-Frankie was a candidate for the Wayne State University Board of Governors on the Communist Party ticket and received 14,903 votes. In 1974 she ran for Michigan State Board of Education, again on the Communist Party Ticket, and received 5,936 votes.
The federal courts must, of course, remain careful not to burden Michigan ballots with frivolous candidates. However, it would be understandable if the courts looked with increasing disfavor on the State’s arguments regarding requisite support for a candidate when the State possesses the power to establish a uniform method of assuring such support and continuously refuses to do so.
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:
|
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.
SCALES v. UNITED STATES.
No. 3.
Argued October 10-11, 1956. — Restored to the docket for reargument June 3, 1957.
Decided October 14, 1957.
Telford Taylor argued the cause and filed a brief for petitioner.
Solicitor General Rankin argued the cause for the United States. With him on the brief were Assistant Attorney General Tompkins, Harold D. Koffsky, Kevin T. Maroney, William F. O’Donnell and Philip T. White.
Barent Ten Eyck filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal.
Per Curiam.
Upon consideration of the entire record and the confession of error by the Solicitor General, the judgment of the United States Court of Appeals for the Fourth Circuit is reversed. Jencks v. United States, 353 U. S. 657.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_casetyp1_7-2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
MALDEN MILLS, INC., Plaintiff-Appellant-Cross Appellee, v. REGENCY MILLS, INC., Defendant-Appellee-Cross Appellant.
Nos. 1231, 1408, Dockets 80-7303, 80-7341.
United States Court of Appeals, Second Circuit.
Argued June 13, 1980.
Decided Aug. 7, 1980.
James K. Silberman, New York City (Blum, Kaplan, Friedman, Silberman & Beran, New York City, Steven H. Hartman, New York City, of counsel), for plaintiff-appellant-cross appellee.
Richard Seltzer, New York City (Ruben, Schwartz, Lasker & Schnall, New York City, of counsel), for defendant-appelleecross appellant.
Before LUMBARD and MANSFIELD, Circuit Judges, and MEHRTENS, District Judge.
Pursuant to § 0.14 of the Rules of this Court, this appeal is being determined by Judges Lumbard and Mansfield, who are in agreement with this opinion. Hon. William O. Mehrtens, United States Senior District Judge for the Southern District of Florida, sitting by designation, who heard the argument, unfortunately died on July 16, 1980. Before his death, Judge Mehrtens voted to reverse and remand the decision of the District Court and was in agreement with his colleagues on all issues in the case. He did not have the opportunity, however, to see this opinion prior to his death.
LUMBARD, Circuit Judge:
Malden Mills appeals from the denial by the District Court for the Southern District of New York, Brieant, J., of a permanent injunction against Regency Mills based on Regency’s alleged infringement of a copyrighted textile design. Judge Brieant found that all the requirements for such an injunction, except that of substantial similarity of the two designs, had been met. In our view it is apparent that the two designs are in fact substantially similar and, accordingly, we reverse and remand to the district court with instructions to enter a permanent injunction.
In 1977, Malden hired a design firm to create a textile design consisting of a tree scene with flowers. Malden, by its officer Sanford Levine, accepted the design, designated it as Style No. 818N and registered its copyright as No. VA 42-277. Style No. 818N has been one of Malden’s most successful fabrics. Since its introduction in 1978, approximately 1,700,000 yards of Style No. 818N, nearly all of it destined for furniture upholstery, have been sold. The pattern is available in four color mixes, of which one, in which brown predominates, known as No. 637, accounted for 98% of Style No. 818N’s sales.
In the summer 1979, Sanford Levine left Malden, along with his brothers, also Malden employees, to found Regency Mills. Soon afterwards, Regency introduced a fabric called “Rustic Road,” available in two color mixes, rust and brown. There was no testimony at trial as to how Rustic Road was designed, although Sanford Levine did testify that he had told his brother Ronald that he “wanted a tree-type pattern.” The district court found that the principals of Regency knew of the design of Style No. 818N and of its success.
The sole substantial issue on this appeal is whether or not the trial court erred in holding that the two designs were not substantially similar. It is settled in this circuit that an appellate court will exercise powers of de novo review in deciding such an appeal. As we stated in Concord Fabrics, Inc. v. Marcus Brothers Textile Corp., 409 F.2d 1315, 1317 (2d Cir. 1969): “As we have before us the same record, and as no part of the decision below turned on credibility, we are in as good a position to determine the question as is the district court.”
The standard of substantial similarity as perceived by the ordinary observer is well-settled in this circuit. Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021 (2d Cir. 1966); Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir. 1960). Noting that two fabric designs were “not identical” in Peter Pan, Judge Learned Hand pointed out that “the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them.” Peter Pan, supra, at 489. In Ideal Toy we said that “the appropriate test for determining whether substantial similarity is present is whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Supra at 1022.
We have examined the two fabrics and are convinced that an ordinary observer would not notice the disparities unless he set out to find them, and that he would recognize the alleged copy as an appropriation. The two designs are of such likeness with regard to subject matter, style of representation, shading, composition, relative size and placement of components, and mood as to obviously substantially similar.
Malden’s fabric comprises a central scene of a large tree leaning at a 45° angle over a body of water. In the background, on the far shore of the river or lake, are other, smaller trees. In the foreground, below and to the left of the tree, is a clump of large flowers. The Regency design also consists of a tree leaning at a 45° degree angle over a body of water. Smaller trees — though these appear to be evergreens rather than deciduous trees, as in Malden’s picture — border the body of water. Also in the lower left foreground of the central part of the Regency design is a clump of large flowers, though the mix of species among the flowers differs. The size of the central tree and flowerbed is the same in both designs. In the Malden design, a Japanese bridge spans the water; no such bridge appears in the Regency design. But in that same area of the Regency design, an overarching curve of tall grass simulates the missing bridge.
The differences between the two designs enumerated by the district court are not enough to support its conclusion of dissimilarity. In denying an injunction in Concord Fabrics, supra, the district court had commented that plaintiff’s pattern contained 25 daisies in each handkerchief and no kidney-shaped elements, while defendant’s design contained 32 kidney-shaped elements and no daisies. We rejected such a daisy-counting approach on appeal, emphasizing instead the similarity of the primary elements of the design and of the two fabrics; the similarity of colors; and the same general impression given by both samples. We noted that the differences cited by the district court only “emphasize the extent to which the defendant has deliberately copied from the plaintiff.”
The case at bar presents the same situation. For example, although the flowers used in Rustic Road are not botanically the same as those in Style No. 818N, the position of the flowers, the technique used to represent them, the relative color weight accorded them, and the use of blank space revealing the underlying fabric color to give the appearance of light and shade is very similar. Detailed visual comparison of different elements in the fabrics — trees, flowers and other scenic features — underscores our conviction that “defendant copied plaintiff’s basic design, making only minor changes in an effort to avoid the appearance of infringement.” Concord Fabrics, supra, at 1316. The similarity of color tones, color placement and relative color intensities in the brown version of Rustic Road bolsters this belief.
Given our view of the fabrics, Regency’s contention that its design represents a road while Malden’s represents a river is irrelevant. Both represent scenes of trees, grass, and flowers in the countryside, and the presence of a road or bridge is not controlling when the similarities are as substantial as they are in this case.
Reversed and remanded to the district court with instructions to enter a permanent injunction against defendants and for further proceedings to determine damages and attorneys fees.
. The district court found that all of the elements needed for a permanent injunction in an infringement case had been proved except for substantial similarity, and these findings are not challenged, except to the extent that Regency cross-appeals from the district court’s finding that Malden had a valid copyright in its Style No. 818N. Regency bases this argument on the contention that the design of Style No. 818N is a “merely trivial,” see Alfred Bell & Co., Ltd. v. Catalda Fine Arts, 191 F.2d 99, 103 (2d Cir. 1951), variation on an illustration in an English book and a fabric known as Fragonard by Kandell. We find Regency’s cross-appeal to be without merit. The English book referred to was not in evidence in the district court, and our comparison of Style No. 818N to the Fragonard design reveals more than “merely trivial” differences. In the absence of any evidence that Malden merely copied another design, the district court’s finding that the copyright possessed by Malden was valid must be affirmed. Alfred Bell & Co., Ltd. v. Catalda Fine Arts, supra.
. We do not view the expert testimony in this case, which merely amounted to opinions regarding matters within the knowledge of the lay observer, to preclude de novo review.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_pretrial
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's rulings on pre-trial procedure favor the appellant?" This includes whether or not there is a right to jury trial, whether the case should be certified as a class action, or whether a prospective party has a right to intervene in the case, but does not include rulings on motions for summary judgment. 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".
STERLING FOREST ASSOCIATES, LTD., a Georgia limited partnership, Plaintiff-Appellee, v. BARNETT-RANGE CORPORATION, a corporation; Hal W. Barnett, a natural person; James E. Range, a natural person, Defendants-Appellants, and Far West Savings and Loan Association, a banking association, Defendant.
No. 87-2514.
United States Court of Appeals, Fourth Circuit.
Argued May 6, 1987.
Decided Feb. 26, 1988.
David Paul Sousa (Joseph C. Moore, Jr., Young, Moore, Henderson & Alvis, P.A., Raleigh, N.C., on brief), for defendants-appellants.
John Carl Schafer, Charles Gordon Brown (Faison, Brown, Fletcher & Brough, Durham, N.C., on brief), for plaintiff-appel-lee.
Before RUSSELL and WILKINS, Circuit Judges, and VAN GRAAFEILAND, Senior Circuit Judge for the Second Circuit, sitting by designation.
VAN GRAAFEILAND, Senior Circuit Judge,
Sitting by Designation:
This is an appeal from an order of the United States District Court for the Eastern District of North Carolina, 673 F.Supp. 1394, Boyle, J., denying enforcement of a forum selection clause in a Purchase Agreement that was drafted in California. The Agreement provided that Sterling Forest Associates, Ltd. (Sterling), a Georgia limited partnership, would purchase a tract of land in North Carolina, and Barnett-Range Corporation (Barnett), a California corporation, would build an apartment complex on it. Differences arose, with the result that Sterling brought this action in North Carolina and Barnett then sued Sterling in California. The portion of the Purchase Agreement with which we are concerned reads as follows:
This Agreement shall be construed and enforced in accordance with the laws of the State of California and the parties agree that in any dispute jurisdiction and venue shall be in California.
Relying on this clause, Barnett moved pursuant to 28 U.S.C. § 1404 to have this action transferred to the United States District Court for the Eastern District of California. When its motion was denied, Barnett appealed.
Prior to the Supreme Court’s decision in The Bremen v. Zapata Off-Share Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), the majority rule in American courts was that forum selection clauses were invalid and unenforceable. 56 A.L.R. 2d 300, 306. The reasons generally given for these holdings were that enforcement would deprive a court of jurisdiction vested in it by law and would be contrary to public policy. Id. at 311-12. Rejecting this reasoning, the Bremen Court held that forum selection clauses are prima facie valid and should be enforced when made in arms-length transactions by sophisticated businessmen, absent some compelling and countervailing reason. 407 U.S. at 9-12, 92 S.Ct. at 1912-14.
This Court has expressed its adherence to the Bremen rule on several occasions, recognizing as it did so that the rule is applicable to domestic commercial cases. See, e.g., Bryant Electric Co. v. City of Fredericksburg, 762 F.2d 1192, 1196-97 (4th Cir.1985); Mercury Coal & Coke, Inc. v. Mannesmann Pipe and Steel Corp., 696 F.2d 315, 317-18 (4th Cir.1982). California also follows Bremen. Smith, Valentino & Smith, Inc. v. Superior Court of Los Angeles County, 17 Cal.3d 491, 495-96, 131 Cal.Rptr. 374, 551 P.2d 1206 (1976). Under North Carolina law, the law of the place where the contract was made determines its validity, its exposition and its consequences. Fast v. Gulley, 271 N.C. 208, 211, 155 S.E.2d 507 (1967); see Wallace Butts Ins. Agency, Inc. v. Runge, 68 N.C.App. 196, 314 S.E.2d 293, 295 (1984). This is particularly true where, as in the instant case, the contract itself provides that it shall be governed by the same law. Kaplan v. RCA Corp., 783 F.2d 463, 465 (4th Cir.1986). Accordingly, whether the forum selection clause is treated as procedural or substantive, Sun World Lines, Ltd. v. March Shipping Corp., 801 F.2d 1066, 1068-69 (8th Cir.1986), the principles articulated in Bremen should be applied.
In Mercury Coal & Coke, Inc. v. Mannesmann Pipe and Steel Corp., supra, 696 F.2d at 318, we rejected a district court’s attempt to circumvent these principles through an overly broad interpretation of what constitutes inconvenience. We said, quoting Bremen, that “inconvenience serves as a ground for invalidation only when enforcement would ‘deprive a party of his day in court.’ ” We also found no merit in the district court’s determination that there was unequal bargaining power simply because one corporate party was larger than the other. Id.; see also Hoffman v. National Equipment Rental, Ltd., 643 F.2d 987, 991 (4th Cir.1981). We are now confronted with an attempt to put the Bremen principles to naught through a patently erroneous interpretation of the selection clause itself.
The district judge concentrated on the word “be” rather than the word “shall”. He said that because the verb “to be” frequently is used to express existence, the clause now in question means only that “jurisdiction and venue shall exist in California” and “elsewhere as well”. The problem with this interpretation is that it makes the forum selection clause meaningless and redundant. Because Barnett is a California corporation, federal jurisdiction and venue statutes provide as a matter of law that California is a proper state for suit. See 28 U.S.C. §§ 1332(a), (c) and 1391(c). It is a well established principle of contract construction that clauses which, as here, are knowingly incorporated into a contract should not be treated as meaningless. Furman v. Cirrito, 828 F.2d 898, 902 (2d Cir.1987) (citing Audino v. Lincoln First Bank, 105 A.D.2d 1091, 1093, 481 N.Y.S.2d 928 (1984) (mem.), aff'd, 65 N.Y.2d 631, 491 N.Y.S.2d 158, 480 N.E.2d 747 (1985)); Bense v. Interstate Battery System of America, Inc., 683 F.2d 718, 722 (2d Cir.1982); Gillentine v. McKeand, 426 F.2d 717, 722 (1st Cir.1970). The only meaningful reason for including the forum selection clause in the instant case was to make California jurisdiction and venue exclusive.
The lawyers for Sterling and Barnett who worked together on the Purchase Agreement were preparing a legal document using well-accepted legal phraseology. As experienced lawyers, they knew that the word “venue” means “place of suit”, Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168, 60 S.Ct. 153, 155, 84 L.Ed. 167 (1939), “the locale in which a suit may properly be instituted”, Minnesota Mining & Mfg. Co. v. Eco Chem., Inc., 757 F.2d 1256, 1264 (Fed.Cir. 1985). They.also knew that the “[u]se of the word 'shall’ generally indicates a mandatory intent unless a convincing argument to the contrary is made.” Manatee County, Florida v. Train, 583 F.2d 179, 182 (5th Cir.1978) (quoting Sierra Club v. Train, 557 F.2d 485, 489 (5th Cir.1977)). This is equally true of the phrase “shall be”. See Mohasco Corp. v. Silver, 447 U.S. 807, 809-10 & n. 2, 100 S.Ct. 2486, 2488-89 & n. 2, 65 L.Ed.2d 532 (1980); Anderson v. Yungkau, 329 U.S. 482, 485, 67 S.Ct. 428, 430, 91 L.Ed. 436 (1947). We would demean the intelligence and legal ability of the drafters of the Purchase Agreement were we to hold that, when, after negotiating the issue, they wrote that the Agreement shall be “construed and enforced” in accordance with California laws and that “venue shall be in California”, what they really meant was that the place in which suit may be brought “shall exist” in California and “elsewhere as well”.
Other courts that have construed similar clauses have refused correctly to follow such a curious course. See, e.g.:
Intermountain Systems, Inc. v. Edsall Constr. Co., 575 F.Supp. 1195, 1197 (D.Colo.1983) (“venue shall be in Adams County, Colorado”);
Gordonsville Indus. v. American Artos Corp., 549 F.Supp. 200, 204 (W.D.Va.1982) (“the place for litigation shall be the [Civil Court] in Bochum, Germany”);
Hoes of America, Inc. v. Hoes, 493 F.Supp. 1205, 1207 (C.D.Ill.1979) (“[a]ny court procedures shall be held in Bremen”);
Taylor v. Titan Midwest Constr. Corp., 474 F.Supp. 145, 148 (N.D.Tex.1979) (“venue shall be laid in the county where Titan has its principal offices”);
Public Water Supply Dist. No. 1 v. American Ins. Co., 471 F.Supp. 1071 (W.D.Mo.1979) (“venue shall lie in Mercer County, State of Missouri”);
Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F.Supp. 71, 72 n. 3 (S.D.N.Y.1978) (“suit ... shall be brought in either San Diego or Los Ange-les County”);
General Electric Co. v. City of Tacoma, 250 F.Supp. 125 n. 1 (W.D.Wash.1966) (“venue ... shall be in the Superior Court of the State of Washington in and for the County of Pierce”).
Having concluded that the denial of Barnett’s motion for change of venue was completely unjustified, we must now decide whether the appropriate remedy should be reversal of the district court’s order or the more cumbersome and stringent remedy of mandamus. Although Barnett has proceeded to this Court by way of appeal, if appeal is improper, we may, if the circumstances warrant, treat the claim for appellate review as a petition for mandamus. International Nickel Co. v. Martin J. Barry, Inc., 204 F.2d 583, 585 (4th Cir.1953); Gold v. Johns-Manville Sales Corp., 723 F.2d 1068, 1074 (3d Cir.1983); Cord v. Smith, 338 F.2d 516, 521 (9th Cir.1964). Putting aside for the moment the determination whether review is available by ordinary appeal so as to preclude the use of mandamus, Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 8 n. 6, 103 S.Ct. 927, 933 n. 6, 74 L.Ed.2d 765 (1983), we think the facts of this case would warrant resort to mandamus relief.
When the Supreme Court decided The Bremen v. Zapata Off-Shore Co., supra, it noted the existence of an “historical judicial resistance to any attempt to reduce the power and business of a particular court.” 407 U.S. at 12. The Court changed the law but did not completely eliminate the judicial resistance, particularly in those cases where convenience of witnesses is a factor. See Bense v. Interstate Battery System of America, Inc., supra, 683 F.2d at 721; Intermountain Systems, Inc. v. Edsall Constr. Co., supra, 575 F.Supp. at 1197. We think evidence of a continuing hostility to forum selection clauses is apparent not only in the district court’s egregious misinterpretation of the clause at issue herein, but also in the manner in which the district court’s holding was arrived at. In the district court’s original decision, it held that the forum selection clause was ambiguous and that Barnett had failed to offer any proof of its mandatory intent. When Barnett then offered the undisputed affidavit of its attorney, in which the attorney averred that he and California counsel for Sterling had discussed and negotiated the forum selection clause and mutually agreed that it mandated resort to the California courts, the district court made an about face, held the clause to be unambiguous and refused to even consider the attorney’s affidavit.
The district court was required to follow the principles articulated in Bremen despite any individual predilections it may have had. United States v. Chase, 281 F.2d 225, 229 (7th Cir.1960); see Walker v. Georgia, 417 F.2d 5, 8 (5th Cir.1969). In the exercise of our supervisory control over the district courts which is essential to proper judicial administration, we should ensure that it does so. See La Buy v. Howes Leather Co., 352 U.S. 249, 259-60, 77 S.Ct. 309, 315-16, 1 L.Ed.2d 290 (1957); In re Virginia Electric and Power Co., 539 F.2d 357, 365 (4th Cir.1976); United States Bd. of Parole v. Merhige, 487 F.2d 25, 29-30 (4th Cir.1973), cert. denied, 417 U.S. 918, 94 S.Ct. 2625, 41 L.Ed.2d 224 (1974).
For all practical purposes, the district court’s decision is a final one which cannot be remedied by an appeal from a final judgment. General Tire & Rubber Co. v. Watkins, 373 F.2d 361, 370 (4th Cir.1967) (en banc); Pacific Car and Foundry Co. v. Pence, 403 F.2d 949, 952 (9th Cir.1968). Should a judgment be rendered against Barnett in this action, it is inconceivable that Barnett could prove that a different result would have been reached had the case been tried in California. General Tire & Rubber Co. v. Watkins, supra, 373 F.2d at 370; Ackert v. van Pelt Bryan, 299 F.2d 65, 68 (2d Cir.1962); Ford Motor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir.), cert. denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624 (1950); see Fed.R.Civ.P. 61. If, as we hold, Barnett is entitled to have this case transferred to California, the time to do it is now. Accordingly, if the order denying transfer to California were not appealable, we would not hesitate to proceed by way of mandamus. See Akers v. Norfolk and Western Ry. Co., 378 F.2d 78, 80 (4th Cir.1967). However, we believe that resort to mandamus is unnecessary.
Although, to be appealable, an order must be “effectively unreviewable on appeal from a final judgment”, Flanagan v. United States, 465 U.S. 259, 265, 104 S.Ct. 1051, 1055, 79 L.Ed.2d 288 (1984) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978)), the requirement of finality must be given a “practical rather than a technical construction”, Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949). For the reasons above assigned, we see no effective way in which the district court’s order denying transfer to California can be reviewed once the case has been tried in North Carolina. The remaining requirements of Cohen are met easily. The district court’s order conclusively determined the disputed question of transfer and, in so doing, resolved an important issue completely separate from the merits of the action. Cohen, supra, 337 U.S. at 546, 69 S.Ct. at 1225. In short, we conclude that the district court’s order is reviewable. In re Diaz Contracting, Inc., 817 F.2d 1047, 1048 (3d Cir.1987); Farmland Indus. v. Frazier-Parrott Commodities, Inc., 806 F.2d 848, 850-51 (8th Cir.1986); see Mercantile National Bank v. Langdeau, 371 U.S. 555, 557-58, 83 S.Ct. 520, 521-22, 9 L.Ed.2d 523 (1963); Hodson v. A.H. Robins Co., 715 F.2d 142, 145 n. 2 (4th Cir.1983); Kontoulas v. A.H. Robins Co., 745 F.2d 312 (4th Cir.1984).
The order of the district court is reversed, and the matter is remanded with instructions to grant appellants’ motion for transfer to California.
REVERSED AND REMANDED.
Question: Did the court's rulings on pre-trial procedure favor the appellant? This includes whether or not there is a right to jury trial, whether the case should be certified as a class action, or whether a prospective party has a right to intervene in the case, but does not include rulings on motions for summary judgment.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_district
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
KACH v. MONESSEN SOUTHWESTERN RY. CO.
No. 8946.
Circuit Court of Appeals, Third Circuit.
Argued Oct. 4, 1945.
Decided Oct. 23, 1945.
Marvin D. Power, of PittsburQh, Pa. (Charles J. Margiotti and Margiotti & Casey, all of Pittsburgh, Pa., and W. A. Endle, of Cleveland, Ohio, General Counsel, Brotherhood of Railroad Trainmen, on the brief), for appellant.
P. K. Motheral, of Pittsburgh, Pa. (Reed, Smith, Shaw & McClay, of Pittsburgh, Pa., on the brief), for appellee.
Before ALBERT LEE STEPHENS, MARIS and GOODRICH, Circuit Judges.
MARIS, Circuit Judge.
The sole question which this appeal presents is whether the defendant, the Monessen Southwestern Railway Company, is a common carrier by railroad which is engaged in interstate commerce within the meaning of the Federal Employers’ Liability Act, the Federal Safety Appliance Acts and the Boiler Inspection Act. In the plaintiff’s suit for damages for injuries suffered while employed as a locomotive fireman by the defendant the trial judge held that the defendant was “not a cofnmon carrier of persons or property on a railroad engaged in [interstate] commerce * * * at the time of the plaintiff’s injuries.” A verdict was accordingly directed for the defendant. From the judgment entered thereon the appeal now before us was taken.
The defendant in its amended answer to the complaint admitted that it was engaged in doing business as a common carrier by railroad for hire under the laws of Pennsylvania but denied that it was engaged in interstate commerce and transportation at the time and place of the occurrences complained of. The defendant is a wholly owned subsidiary of the Pittsburgh Steel Company and its railroad, the main track of which is 7% miles in length, connects the various works of that company at Monessen, Pennsylvania, with the lines of the Pittsburgh & Lake Erie Railroad Company and the Pittsburgh & West Virginia Railway Company.
The evidence discloses that the defendant receives cars loaded with raw materials consigned to the Steel Company from the two connecting railroads and places them at the appropriate points in the works of the Steel Company. It also receives from the Steel Company cars loaded with the manufactured product of that company and moves them from the points of loading to points of connection with the connecting railroads. The defendant, however, does not publish tariffs of any kind, does not issue bills of lading, its name does not appear on any of the bills of lading covering the inbound shipments received from the connecting railroads and it does not participate in any of the freight rates covering the materials transported by those railroads. The defendant charges the Steel Company for its car spotting services and per hour hire for services of motor power and crew, locomotive cranes and crews, and shovels.
The evidence further discloses that three days prior to the day on which the plaintiff was injured the defendant moved a loaded car which had been consigned from a point outside of Pennsylvania'to the Steel Company at Monessen, that two days prior thereto the defendant moved sixteen cars which had been consigned from various points outside of Pennsylvania to the Steel Company at Monessen, that on the day of the accident the defendant moved three empty cars from its yards to the Steel Company’s plant at Monessen for loading there to points outside of Pennsylvania and that the plaintiff as a locomotive fireman participated in all these movements.
We think that the facts thus disclosed establish that the defendant railroad is engaged in interstate commerce within the meaning of the acts upon which the plaintiff relies. The fact that the defendant railroad does not itself transport consignments of freight across state lines does not place it beyond the reach of the federal power under the commerce clause of the Constitution. Const. art. 1, § 8, cl. 3. If it takes part with other carriers in the continuous movement of a consignment of freight which passes across a state line at some point in its journey between the place of origin and the place of destination it becomes a participant in interstate commerce and, therefore, subject to the power of Congress under the commerce clause of the Constitution. The evidence, as we have seen, discloses that the defendant does exactly that.
Although the defendant’s operation is largely confined to the movement of cars into and out of the Steel Company’s works it nonetheless does move for a portion of their trip carloads of freight which have been definitely committed to an interstate journey. Compare Philadelphia & R. R. Co. v. Hancock, 1920, 253 U.S. 284, 40 S.Ct. 512, 64 L.Ed. 907. It is in this respect that the case is distinguishable from McCluskey v. Marysville & N. R. Co., 1917, 243 U.S. 36, 37 S.Ct. 374, 61 L.Ed. 578, relied upon by the defendant. In view of the fact that the defendant does physically participate in a portion of the interstate movement of consignments of freight it becomes wholly unimportant that it does not itself publish tariffs or participate in the tariff charges of its connecting railroads.
The defendant points out that before a railroad may lawfully operate in interstate commerce it first must obtain a certificate of public convenience and necessity from the Interstate Commerce Commission. It states that the Commission has refused it such a certificate and has held it to be a mere plant facility of the Steel Company. The defendant urges that these determinations by the Commission are binding upon us and establish that the defendant is not engaged in interstate commerce. It is unnecessary for us to consider the nature or extent of these determinations by the„ Commission, however, for we cannot agree that they control the disposition of the case now before us. The plaintiff was not a party to them. He is entitled to a judicial determination of the question whether the defendant is engaged in interstate commerce within the meaning of the acts upon which he relies without regard to what the Interstate Commerce Commission may have determined in a proceeding of a different nature brought under other statutes.
Under the facts of this case there is, as we have already demonstrated, no room for doubt that the defendant is engaged in interstate commerce within the meaning of the commerce clause of the Constitution. The Act of August 11, 1939 amended Section 1 of the Federal Employers’ Liability Act by adding thereto the following provision : “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate * * * commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this Act, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this Act. * * * ”
In the light of this amendment it was not necessary for the plaintiff to show that either he or the defendant was engaged in the movement of an interstate shipment of freight at the very moment of the injury. The evidence clearly established that the defendant habitually participated in the movement of interstate shipments of freight and that the plaintiff customarily assisted as a locomotive fireman in those movements. The amended act requires no greater showing than this.
The judgment is reversed and the cause is remanded to the district court for a new trial.
45 U.S.C.A. § 51 et seq.
45 U.S.C.A. § 1 et seq.
45 U.S.C.A. § 22 et seq.
Philadelphia & R. R. Co. v. Hancock, 1920, 253 U.S. 284. 40 S.Ct. 512, 64 L.Ed. 907; United States v. Colorado & N. W. R. Co., 8 Cir., 1907, 157 F. 321, 15 L.R.A.,N.S., 167, 13 Ann.Cas. 893, certiorari denied 209 U.S. 544, 28 S.Ct. 570, 52 L.Ed. 919; Belt Ry. Co. of Chicago v. United States, 7 Cir., 1909, 168 F. 542, 22 L.R.A.,N.S., 582, certiorari denied, 223 U. S. 743, 32 S.Ct. 532, 56 L.Ed. 638. For an interesting discussion see opinion of Judge Cardozo in Cott v. Erie R. Co., 1921, 231 N.Y. 67, 131 N.E. 737, certiorari denied, 257 U.S. 636, 42 S.Ct. 49, 66 L.Ed. 409. See also Roberts on Injuries to Interstate Employees on Railroads, § 67. Compare Baltimore & O. S. W. R. Co. v. Settle, 1922, 260 U.S. 166, 43 S.Ct. 28, 67 L.Ed. 189.
Monessen S. W. Ry. Co. Operation, 217 I.C.C. 181.
Pittsburgh Steel Company Terminal Allowance, 209 I.C.C. 87, 91, 92; Pittsburgh Steel Company Terminal Allowance, 241 I.C.C. 562, 563.
53 Stat. 1404.
Lukon v. Pennsylvania R. Co., 3 Cir., 1942, 131 F.2d 327; Edwards v. Baltimore & O. R. Co., 7 Cir., 1942, 131 F.2d 366, 369.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
sc_lcdisagreement
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
LOPEZ v. UNITED STATES.
No. 236.
Argued January 14, 1963.
Decided May 27, 1963.
Edward J. Davis argued the cause for petitioner.. With him on the brief was Gerald F. Muldoon.
Louis F. Claiborne argued the cause for the United States. With him on the brief were Solicitor General Cox; Assistant Attorney General Miller, Beatrice Rosenberg and Jerome M. Feit.
Mr. Justice Harlan
delivered the opinion of the Court.
The petitioner, German S. Lopez, was tried in a federal court on a four-count indictment charging him with attempted bribery of an Internal Revenue Agent, Roger S. Davis, in violation of 18 U. S. C. § 201. The questions before us for review are:' (1) whether the trial court’s treatment of “entrapment” constituted reversible error; and (2) whether Davis’ testimony relating to a conversation with petitioner on October 24, 1961, which formed the basis of the three, counts, of the indictment on which petitiofier was convicted, and a wire recording of that conversation^ were properly admitted into evidence.
The evidence at the trial related to three meetings between Lopez, and Davis that took place at Clauson’s Inn, situated at North Falmouth, Massachusetts, and operated by Lopez under a lease. Davis, who was investigating possible evasion of excise taxes in the area, first visited the Inn on the afternoon of August 31,1961, when he asked.Lopez whether there was any. dancing, singing, or other entertainment in the evenings and showed him an advertisement for the Inn which stated that there was. Lopez said there was no entertainment and denied responsibility for the advertisement. Davis returned again that evening and saw dancing in the bar and lounge. He described the Inn in a report to his superior the next day as a “potential delinquent” and said that he would “follow up.”
Davis next returned to the Inn on October 21, when he again saw dancing in the bar and lounge, and" spoke with Lopez. • Davis’ testimony about this meeting may be summarized as follows:. Early in the. discussion, Davis told Lopez that he thought the establishment would be liable for a cabaret tax and asked to see the books, but Lopez resisted and suggested that they continue the conversation in his,office. Once there, Lopez suggested that he would like to avoid all “aggravation” and to reach an'“agreement.” After Davis said he could not drop the matter and would return the following' week; Lopez said he didn’t wish to “insult” Davis and that he didn’t know whether to take him into his “confidence.” Receiving no reply, Lopez put some money on the desk saying:
“You can drop this case. Here’s $200. Buy your wife a present. And I’ll have more money for you at Christmas time. This is all I have now.”
Davis balked, and Lopez urged him to take the money and to bring his wife and family for a weekend “as my guest.” Following some questioning as to the extent of Lopez’ business, during the course of which Davis estimated a year’s tax as running to $3,000, Lopez added another $220 to the money on the desk, stating that he did not want to be bothered with returns for past years but would file a return, for the current quarter. More importunities on Lopez’ part followed and Davis finally took the money. Before Davis left, Lopez again said he .would file a return for the current quarter and asked Davis to come back, on October 24.
Lopez, in his version of the events of October 21, admitted giving the $420 to Davis but said the money was given in an effort to have Davis prepare his returns and-get his books in proper order. According to Lopez’ testimony, he told Davis that he would file returns from October 17 on, since on that date the Inn had changed its policy to one of entertainment.
After leaving the Inn, Davis-reported the meeting to a •fellow agent and to his superior and turned over the $420 to a Regional Inspector. On the morning of October 24, he met with four Internal Revenue Inspectors, who instructed him to keep his appointment with Lopez, to “pretend to play along with the scheme,” and to draw the conversation back to the meeting of October 21. Davis was then equipped with two electronic devices, a pocket battery-operated transmitter, (which subsequently failed to work) and a pocket wiré recorder, which recorded the conversation between. Lopez and Davis at their meeting later in the day.
According to the recording of that conversation, Davis suggested they talk in Lopez’ office and, once inside the office, Davis started to explain the excise tax form and to discuss the return. Before any computations were made, Lopez said he had never thought he needed to file a cabaret tax return, and the conversation then continued:
“Lopez: . . . Whatever we decide to do from here on I’d like you to be on my side and visit with me. Deduct anything you think you should and I’ll be happy to . . . because you may prevent something coming up in the office. If you think I should be advised about it let me know. Pick up the phone. I can meet you in town or anywhere you want. For your information the other night I have to . . .
“Davis: Well, you know I’ve got a job to do.
“Lopez: Yes, and Uncle Sam'is bigger than you and I are and we pay a lot of taxes, and if we can benefit something by it individually, let’s keep it that way and believe me anything that transpires between you and I, not even my wife or my accountant or anybody is aware of it. So I want you to feel that way about it.”
The two then discussed receipts and the potential tax liability for 1959-1961, and Lopez protested that Davis’ estimates were very high, although he did not deny the fact' of liability. After Davis said, “I don’t want to get greedy or anything,” Lopez gave him $200 and later in the conversation told Davis he could bring his family down for a free weekend, and should “[c]ome in every so often and I’ll give you a couple of hundred dollars every time you come in.” At one point, Lopez said “Now if you should suggest that T should file returns from this point on, I’ll do it. If you suggest that I can get by without doing it, then just drop in every so often and I’ll . . .” Lopez also confirmed that he had given Davis $420 on October 21.
Lopez, in his testimony, did not question the accuracy of the recording and in fact said little 'more about the meeting of October 24 than that Davis had goné into a lot of figures and that he (Lopez) had become emotionally upset because he felt that Davis “was not there for the purpose that he came in there fpr on October 21st.” He did not suggest that Davis had induced him to offer any bribes.
The first of the four counts in the ensuing indictment charged that at the meeting of October 21, Lopez gave Davis the $420 with intent to induce Davis, among other things, “to refrain from making an examination of the books and records relating to'sales and receipts” at the Inn from 1959-1961. The remaining three counts related to the meeting of October 24, and charged three separate acts of attempted bribery, each fpr the purpose of influencing Davis to aid in concealing sales, receipts, and any cabaret tax due for the years 1959-1961. The acts were the giving of $200 to Davis (Count 2), the promise of an additional $200 the following month (Count 3), and the promise of a free weekend for Davis and his family (Count 4).
Prior to trial, petitioner filed a motion to suppress as evidence the wire recording of the October 24 conversation between Lopez and Davis. After hearing, this motion was denied. At trial, the motion was renewed and again denied, and the recording was received in evidence. Petitioner did not object to the testimony of Agent Davis relating to the October 24 conversation.
In his charge to the jury, the trial judge emphasized the presumption of innocence and the burden on the Government to establish “every essential element” of the crime beyond a reasonable doubt. He then detailed what these essential .element's were and called particjulár attention to the contrast between the specific intent charged in Count 1 — to prevent an examination of books and records — and the more general-intent charged in the other three counts — to conceal liability for the tax in question. He strongly suggested -that the specific intent alleged in Count 1 had not been established beyond a reasonable doubt.
Although defense counsel had briefly adverted to the possibility of “entrapment” in'his summation to the jury, he did not request jüdgment of acquittal on that ground. Nor did he request any instruction on the point- or offer at the trial any evidence particularly aimed at such a defense. Nevertheless, the trial judge did. charge on , entrapment. Petitioner made no objection to this •' instruction, or to any'other aspect of the charge.
The jury acquitted On Count 1 and found petitioner guilty on Counts 2, 3 and 4. • A motion for judgment notwithstanding the verdict “as a matter of law on the evidence” was denied, and petitioner was sentenced to a term of imprisonment for one year.
Following per curiam affirmance of the conviction by the Court of Appeals for the First Circuit, 305 F. 2d 825, we granted certiorari, 371 U. S. 859, to consider the two questions stated at the outset of this opinion. Supra, pp. 428-429.
I.
The defense of entrapment, its meaning, purpose, and application, are problems that have sharply divided this Court on past occasions. See Sorrells v. United States, 287 U. S. 435; Sherman v. United States, 356 U. S. 369; Masciale v. United States, 356 U. S. 386. Whether in the absence of a conclusive showing the defense is for the court or the jury, and whether the controlling standard looks only to the conduct of the Government, or also takes into account the predisposition of the defendant, are among the issues that have been mooted. We need not, however, concern ourselves with any of these questions here, for under any approach, petitioner’s belated claim' of entrapment is insubstantial, and the record fails to show any prejudice that would warrant reversal on this score.
The conduct with which the defense of entrapment is concerned is the manufacturing of crime by law enforcement officials and their agents. Such conduct, of course, is far different from the permissible stratagems involved in the detection, and prevention of crime. Thus before the issue of entrapment can fairly be said to have been presented in a criminal prosecution there must have been at least some showing of the kind of conduct by government agents which may well have induced the accused to commit the crime charged.
In the case before us, we think that such a showing has not been made-. ■ It is undisputed .that at the meeting of October 21, petitioner made an unsolicited offer of $420 to Agent Davis; The references to the October 21 offer in the recorded conversation scarcely leave room for doubt that this offer was made for the same general purpose as the bribes offered at the October 24 meeting: to obtain Davis’ assistance in concealing any cabaret tax liability for past and present periods. As to the meeting of October 24, the recording shows that petitioner’s improper overtures began almost at the outset of the discussion, when he stated: “Deduct anything you think you should and I’ll be happy to . . . because 'you may prevent something coming up in the office.” This and similar statements preceded Davis’ computations, and his comment, “I don’t want to get greedy,” on which petitioner so heavily relies. Moreover, we find nothing in the recording as a whole, or in petitioner’s own testimony, to suggest that his conduct on October 24 was instigated by Davis. Upon any reasonable assessment , of the record, it seems manifest that all that Davis was doing was to afford an opportunity for the continuation of a course of criminal conduct, upon which the petitioner had earlier voluntarily embarked, under circumstances susceptible of proof.
It is therefore evident that, under any theory, entrapment has not been shown as a matter of law. Indeed, the paucity of the showing might well have justified' a refusal, to instruct the jury at all on entrapment. But in any event no request for such an instruction was made, and there was no objection to the instruction given. Under these circumstances, petitioner may not now challenge the form of that instruction. See Fed. Rules Crim. Proc., 30.; Moore v. United States, 262 F. 2d 216; Martinez v. United States, 300 F. 2d 9. Nor was there on this score any such plain error in the charge, affecting substantial rights, as would warrant reversal despite the failure to object. See Féd. Rules Crim. Proc., 52 (b). Since the record does not disclose a sufficient showing that petitioner was induced to offer a'bribe, we cannot conclude that he was prejudiced by the charge on burden of proof, even assuming that the burden called for was too great. By the same token, we are not persuaded that in this case it is significant to determine whether entrapment should turn on the effect of the Government’s conduct on “men of ordinary firmness,” as the court charged, or on the effect on the particular defendant. Accordingly, we do not reach the question whether the charge was in every respect a correct statement of the law. It is enough to say that in the circumstances of this case, there was in any event no reversible error.
II.
Petitioner’s remaining contentions concern the admissibility of the evidence relating to his conversation with Davis on October 24. His argument is primarily addressed to the recording of the conversation, which he claims was obtained in violation of his rights under the Fourth Amendment. Recognizing the weakness of this position if Davis was properly permitted to testify about the same conversation, petitioner now challenges that testimony as well, although he failed to do so at the trial. His theory is that, in view of Davis’ alleged falsification of his mission, he gained access to petitioner’s office by misrepresentation and all evidence obtained in the office, i. e., his conversation with petitioner, was illegally “seized.” In support of this theory, he relies on Gouled v. United States, 255 U. S. 298, and Silverman v. United States, 365 U. S. 505. But under the circumstances of the present case, neither of these decisions lends any comfort to petitioner, and indeed their rationale buttresses the conclusion that the evidence was properly admitted. See On Lee v. United States, 343 U. S. 747.
We need not be long detained by the belated claim that Davis should not have been permitted to testify, about the conversation of October 24. Davis was not guilty of an unlawful invasion of petitioner’s office simply because his apparent willingness to accept a bribe -was not real. Compare Wong Sun v. United States, 371 U. S. 471. He-was in the office with petitioner’s consent, and while there he did not violate the privacy of the office by seizing something surreptitiously without petitioner’s knowledge. Compare Gouled v. United States, supra. The only evidence obtained consisted of statements made by Lopez to Davis, statements which Lopez knew full well could be used against him by Davis if he wished. We decline to hold that whenever an offer of a bribe is made in private, and the offeree does not intend to accept, that offer is a constitutionally protected communication.
Once it' is plain that Davis could properly, testify about his conversation' with Lopez, the constitutional claim relating to the recording of that conversation emerges in proper perspective. The Court has in the past sustained instances of “electronic eavesdropping’’ against constitutional challenge, when devices have been used to enable government agents to overhear conversations which would have been beyond the reach of the human ear. See, e. g., Olmstedd v. United States, 277 U. S. 438; Goldman v. United States, 316 U. S. 129. It has. been insisted only that the electronic device not be planted by an unlawful physical invasion of a constitutionally protected area. Silverman v. United States, supra. The validity of these decisions is not in question, here. Indeed this case involves no “eavesdropping” whatever in any proper sense of that term. The Government did not use an electronic device to listen in bn conversations it could not otherwise have heard. Instead, the device was used only to obtain the most reliable evidence possible of a conversation in which the Government’s own agent was a participant and which that agent was fully entitled to disclose. And the device was not planted by means of an unlawful physical invasion of petitioner’s premises under circumstances which would violate the Fourth Amendment. It was carried in and out by-an agent who was there with petitioner’s assent, and it neither saw nor heard more than the agent himself.
The case is thus quite similar to Rathbun v. United States, 355 U. S. 107, in which we sustained against statutory attack the admission in evidence of the testimony of a policeman as to a conversation he overheard on an extension telephone with the consent of a party to the conversation. The present case, if anything, is even clearer, since in Rathbun it was conceded by all concerned “that either party may record the conversation and publish it.” 355 U. S., at 110. (Emphasis added.)
Stripped to its essentials, petitioner’s argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent’s memory, or to challenge the agent’s credibility without being beset by corroborating evidence that is not susceptible of impeachment. For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. We think the risk that petitioner took in offering a bribe to Davis fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording.
It is urged that whether or not the recording violated petitioner’s constitutional rights, we should prevent its introduction in evidence in this federal trial in the exercise of our supervisory powers. But the court’s inherent power to refuse to receive material evidence is a power that must be sparingly exercised. Its application' in the present case, where there has been no manifestly improper conduct by federal officials, would be wholly unwarranted.
The function of a criminal trial is to seek out and determine the truth or falsity of the charges brought against the defendant. Proper fulfillment of this function requires that, constitutional limitations aside, all relevant, competent evidence be admissible, unless the manner in which it has been obtained — for example, by violating some statute or rule of procedure — compels the formulation of a rule excluding its introduction in a federal court. See, e. g., McNabb v. United States, 318 U. S. 332; Mallory v. United States, 354 U. S. 449.
When we look for the overriding considerations that might require the exclusion of the highly useful evidence involved here, we find nothing. There has been no invasion of constitutionally protected rights, and no violation Of federalilaw or rules of procedure. Indeed, there has not even been any electronic eavesdropping on a private conversation which government agents could not otherwise have overheard. There has, in short, been no act of any kind which could justify the creation of an exclusionary rule. We therefore conclude that the judgment of the Court of Appeals must be
Affirmed.
18 U. S. C. §201 provides:
“Whoever promises, offers, or gives any money or thing of value ... to ány officer or employee or person acting for or on behalf of the United States, or any department or agency thereof, in any official function . . . with intent to influence his decision or action on any question,' matter, cause, or proceeding which- may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, or with intent to influence him to commit or aid in committing, or to collude in, .or allow, any fraud, or make.opportunity for the commission of any fraud, on the United States, or to induce him to do or omit to do any act in violation of his lawful duty, shall be fined not more than three times the amount of such money or value of such thing or imprisoned not more than three years, or both.”.
There have been no omissions from this passage. The indicated elisions appear in the original record.
Count 1 also charged that the money was given to induce Davis “to refrain . . . from computing a cabaret tax on . . . [the business of the Inn], and from reporting same to the Internal Revenue Service.”
“Now the law with respect to entrapment is this: if a government agent by improper means or over-bearing persuasion or wrongful conduct induces a person of ordinary firmness to commit a crime which he would not otherwise commit, then under those circumstances the defendant is to be acquitted, not because he did not do something ‘ wrongful but because he was induced to do a wrongful act which he would not otherwise have done.
“Now needless to say in all types of law enforcement, particularly with respect to matters involving certain types of regulatory statutes, it is often difficult for the government to get evidence, and government agents may properly,- and without violating the law, or their duty, take such steps as make it possible to procure evidence even though such steps involve their own participation, provided that their participation is not a deliberate temptation to men of ordinary firmness, provided that they do not cause a crime to be committed by someone who does not have a criminal disposition to commit that crime.
“The burden of proof with respect to entrapment is on the defendant. And you are to ask. yourself whether in .fact on the evidence you heard you are persuaded by the preponderance of that evidence that-'Agent Davis, as it were, created the crime and the temptation, and he, Agent Davis, was the instigator and author of a crime that would, never under any circumstances have taken place, had he not used .unfair means.”
That this was the purpose of the October 21 offer is in no way inconsistent with the verdict of acquittal on Count 1. Count 1, as noted above, charged, among other things, a specific intent to induce the agent not to examine books and records, and the court in its charge attached great emphasis to the language of this count. Thus it may well have been that the acquittal on Count 1 was based solely on the jury’s conclusion that the Government had not proved the existence of the specific intent beyond a reasonable doubt.
Petitioner claims that Davis’ assertions of the existence of cabaret tax liability, and of the extent of that liability, were so recklessly false as to suggest or require a finding of entrapment. But as noted, petitioner’s overtures preceded these assertions, and in any event, Davis had ample basis for believing that taxes were due, and petitioner never undertook to deny his liability during the conversation on October 24. Although Davis conceded that he may have made some errors in computation because of “nervousness,” petitioner in his testimony made no claim that these computations led to the bribe offers.
Petitioner does not claim that the issue of entrapment should always be decided by the court and never submitted to the jury, and we are not now presented with that question. See Sherman v. United States, 356 U. S. 369; Masciale v. United States, 356 U. S. 386.
Rule 30 provides in pertinent part:
“No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.”
The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or .affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In On Lee, the defendant had been induced to make certain statements by an old acquaintance who, .without the defendant’s knowledge, had turned government informer and was carrying a small concealed microphone which transmitted the conversation to a narcotics agent some distance away. Thus any differences between On Lee and this case cut against the petitioner.
The trustworthiness of the recording is not challenged.
Since Agent Davis himself testified to the conversation with petitioner which was the subject matter of the recording, the question whether there may be circumstances in which the use of such recordings in evidence should be limited to-purposes of “corroboration” is not presented by this case.
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
|
songer_district
|
E
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
ANDREWS BROS. OF CALIFORNIA v. CENTRAL PRODUCE CO.
No. 11653.
United States Court of Appeals Sixth Circuit
April 14, 1953.
Henry O. Wackerbarth, Los Angeles, Cal., for appellant.
E. D. Jackson, Nashville, Tenn., for ap-pellee.
Before SIMONS, Chief Judge, and ALLEN and MARTIN, Circuit Judges.
PER CURIAM.
The appellant instituted a reparation proceeding pursuant to the Perishable Agricultural Commodities Act of 1930, as amended, Title 7 U.S.C.A. § 499a et seq. Following the decision of the administrative agency set up by that Act, appellant instituted an action in the United States District Court for the Middle District of Tennessee in which the District Judge concurred in the findings of fact of the designated officer of the Secretary of Agriculture, who filed findings of fact, conclusions and an order from which both the appellant and the appellee appealed to the District Court seasonably for a de novo trial of the issues.
The United States District Court approved and adopted as its own the findings of the administrative official of the Department of Agriculture. The court also adopted the conclusions of that agency, except in one particular, which was that the appellee should have been permitted to assert its counterclaim for affirmative relief. We think the District Court ruled correctly in this respect, in applying sections 8745, 8746 and 8749 of the Tennessee Code. See Harvey v. Campbell, 166 Tenn. 369, 61 S. W.2d 465. Compare Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079.
This court is of opinion that there was ample substantial evidence to support the findings of fact of the designated agent of the Secretary of Agriculture and the concurring findings of the District Court. It has been held that the Perishable Agricultural Commodities Act was not intended to repeal the law of sales or to destroy rights or liabilities of contracting parties. Ernest E. Fadler Co. v. Hesser, 10 Cir., 166 F.2d 904.
Appellee refused to accept from appellant 28 cars of fruit out of a total of 36 cars contracted to be purchased for the reason that six of the first eight carload shipments contained spoiled and unfit fruits. Flowever, appellee withdrew its objection to four of the 28 cars, when it ascertained that these four cars had already been delivered to the railroad company, f. o. b. cars in California for shipment to appellee at Nashville, Tennessee. The position of ap-pellee is, in our judgment, correct upon the proposition that, on account of the spoiled condition of the fruit in a substantial part of the first eight carloads received, the ap-pellee produce company was not required as a matter of law to accept delivery of the remaining 24 cars of fruit which had not been delivered f. o. b. cars at the shipping point in California for shipment to appellee at Nashville, Tennessee; and appellee had a right to rescind the contract as to the purchase of such cars.
The amount awarded appellee on its counterclaim was consistent with the proof adduced in the case. Likewise, the fee allowed appellee’s attorney to be paid by appellant was justifiably awarded.
Accordingly, the judgment of the District Court is affirmed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_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".
Fred F. LEHMAN, Administrator of the Estate of Milton E. Lehman, deceased, Margaret Wright, Administratrix de bonis non of the Estate of Donald Dean Wright, deceased, and Abe Cox, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Garnishee, Appellee.
No. 8100.
United States Court of Appeals Tenth Circuit.
Sept. 13, 1965.
William A. Buckles, Burlington, Kan., for appellant (Clifford L. Malone and Joe Rolston, Wichita, Kan., on the brief).
Malcolm Miller, Wichita, Kan., for ap-pellee (Robert C. Foulston and Benjamin C. Langel, Wichita, Kan., on the brief).
Before BREITENSTEIN, HILL and SETH, United States Circuit Judges.
SETH, Circuit Judge.
This is the second appeal of this case. The facts are set out in the previous opinion at 334 F.2d 437, and it is not necessary to repeat them here other than to state that Mr. Abe Cox was the named insured under a policy of the garnishee State Farm Mutual Automobile Insurance Company, and it was found that he was engaged in a joint adventure with a third party for the hauling of produce and other commodities. The named insured at the time of the accident was transporting the decedents in a car for the purpose of reloading produce which had spilled by the side of the highway as a result of an accident. He had picked them up in Leroy,, Kansas, and was driving the car enroute to the location of the overturned produce truck at the time the fatal accident occurred.
The insured at the time of the accident was driving what the insurance policy describes as a “non-owned” automobile. This policy provides for coverage of the named insured while driving such a non-owned automobile, and also covers “any other person or organization legally responsible for the use by the named insured. * * * ” of such automobile. The policy defines the term “insured” to include the named insured, and again “any person or organization legally responsible for the use thereof by an insured. * * * ”
The issue on this appeal concerns primarily an exclusion clause in the policy. This exclusion states that the policy shall not apply to “bodily injury of any employee of the insured arising out of and in the course of the insured’s employment, * *
The trial court found in substance:
1. That the joint adventure must be considered as an organization responsible for the use of the automobile in question by the named insured Abe Cox at the time of the accident and became an “insured” ;
2. That the decedents were employees of the joint adventure at the time of the accident; and
3. That the exclusionary clause applies to employees of the joint adventure and is not limited by its terms to employees of the named insured.
The trial court concluded that the exclusion clause was applicable, and that State Farm was not liable under the policy to the decedents’ representatives.
The plaintiffs-appellants argue on this appeal that the trial court was in error in finding the decedents at the time of the accident to be employees under the exclusion clause, and that their deaths did not arise out of and in the course of “the insured’s” employment. Appellants also contend that State Farm Mutual is estopped to contend that the decedents were employees of a joint adventure.
The findings of the trial court are clearly supported by the evidence. The record shows that the decedents were hired by Abe Cox at the town of Leroy, Kansas, where he resided. He made a statement which in part said:
I went down to the pool hall and talked to Milton E. Lehman and Donald Wright who were both there at the time about going up with me and helping me unload the truck. We didn’t agree on how much I was to pay them but I did tell them I would pay them. We didn't know how long we would be gone. I drove back to my brother’s house alone and picked up my brother’s 1956 Chevrolet 2-door sedan and returned to the pool hall and picked up the boys and we left Leroy after 12 noon.
It is clear that the decedents were engaged for this one job of reloading the produce, and that their transportation to the place where they were to work was part of the arrangement. Abe Cox in the above-quoted statement indicates that the decedents were engaged to go with him. Abe Cox in undertaking to reload the spilled produce was engaged in furtherance of the joint adventure, and this had commenced at the time the decedents were hired in Leroy, Kansas. The hiring and the transportation of the decedents was part of the joint adventure, and the trial court was correct in holding that the decedents were employees of the joint adventure. This is in conformance with Elliott v. Behner, 150 Kan. 876, 96 P.2d 852 and Leiker v. State Farm Mutual Automobile Ins. Co., 193 Kan. 630, 396 P.2d 264.
The appellants urge that the exclusionary clause in referring to employees of “the insured” and to their injury arising out of “the insured’s employment” refers only to the named insured — and his own employment. As indicated above, the named insured Abe Cox was found to be acting in furtherance of the joint adventure and as stated by the trial court, was “performing duties which he customarily performed pursuant to the joint venture. * * * ” This removes any question as to course of employment. The appellants’ point in this connection also relates to the use of the word “the” before “insured”, as meaning only employees of the named insured. The trial court answered this contention of the appellants in a clear and concise manner when it stated:
We conclude that exclusion clause (e) providing that the policy does not apply to “bodily injury to any employee of the insured arising out of and in the course of the insured's employment, * * * ” is not limited to employees of the named insured but includes also employees of an additional insured such as the joint venture here involved. In other words, we do not read “the” prefacing “insured” as a qualification within the definition of the “unqualified word ‘insured’ ”. The policy defines “named insured” and “insured”. The policy contains liberal use of the phrase “named insured”. We will not strain ourselves to create an ambiguity where we feel in common sense there is none.
We agree with the trial court that the construction urged here by the appellants would create an ambiguity in the policy where none exists and would not be consistent with the remainder of the policy. The trial court then concluded that the exclusion applied to the joint adventure md was not limited to the named insured.
The general purpose of an exclusionary clause relating to employees of an insured is clear and well-recognized. The insurer distinguishes between its possible liability to the public and to employees of the insured. It is apparent that the nature of the risk is different as to the two groups, and customarily other types of insurance are provided to cover the risk of injury to employees, This distinction appears in Tri-State Casualty Ins. Co. v. Loper, 204 F.2d 557 (10th Cir.), and the court describes the applicable standards for construction of such a policy as is before us. The rule of construction with reference to Kansas was set out in Prime Drilling Co. v. Standard Accident Insurance Co., 10 Cir., 304 F.2d 221. See also Blair v. Automobile Owners Safety Insurance Co., 178 Kan. 615, 290 P.2d 1028; Knouse v. Equitable Life Ins. Co. of Iowa, 163 Kan. 213, 181 P.2d 310; and for the standard generally Hercules Casualty Ins. Co. v. Preferred Risk Ins. Co., 10 Cir., 337 F.2d 1, and Taylor v. New York Life Insurance Co., 10 Cir., 324 F.2d 768.
In the case at bar the wording of the exclusion clause in the policy is clear and conveys a definite meaning. Although there is no direct Kansas authority on the point the case of Leonard v. Maryland Casualty Co., 158 Kan. 263, 146 P.2d 378, is persuasive, as are the Kansas cases cited above. The appellant urges that the case of Bean v. Gib-bens, 175 Kan. 639, 265 P.2d 1023, governs but the case is clearly distinguishable by reason of the nature of the employment and the relationship to it of the transportation.
The appellants also urge that the insurer is estopped to contend that the decedents were employees of a joint adventure by reason of a letter dated July 19, 1960, which referred to them as employees of Abe Cox. This does not serve as a basis for an estoppel of the insurance company from making the contentions it subsequently did during the course of the litigation. None of the elements of the doctrine are shown to be present.
The appellants also urge that they are entitled to recover attorneys fees but there is no basis for such a contention under the applicable laws of Kansas.
The case is therefore
Affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
sc_lcdisposition
|
C
|
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.
UNITED STATES v. APFELBAUM
No. 78-972.
Argued December 3, 1979
Decided March 3, 1980
Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Powell, and Stevens, JJ., joined. Brennan, J., filed an opinion concurring in the judgment, post, p. 132. Black-mun, J., filed an opinion concurring in the judgment, in which Marshall, J., joined, post, p. 133.
William C. Bryson argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Frey, Sidney M. Glazer, and Vincent L. Gambale.
Joel Harvey Slomsky argued the cause and filed a brief for respondent.
Mr. Justice Rehnquist
delivered the opinion of the Court.
Respondent Apfelbaum invoked his privilege against compulsory self-incrimination while being questioned before a grand jury in the Eastern District of Pennsylvania. The Government then granted him immunity in accordance with 18 U. S. C. § 6002, and he answered the questions propounded to him. He was then charged with and convicted of making false statements in the course of those answers. The Court of Appeals reversed the conviction, however, because the District Court had admitted into evidence relevant portions of respondent’s grand jury testimony that had not been alleged in the indictment to constitute the “corpus delicti” or “core” of the false-statements offense. Because proper invocation of the Fifth Amendment privilege against compulsory self-incrimination allows a witness to remain silent, but not to swear falsely, we hold that neither the statute nor the Fifth Amendment requires that the admissibility of immunized testimony be governed by any different rules than other testimony at a trial for making false statements in violation of 18 U. S. C. § 1623 (a) (1976 ed., Supp. II). We therefore reverse the judgment of the Court of Appeals.
I
The grand jury had been investigating alleged criminal activities in connection with an automobile dealership located in the Chestnut Hill section of Philadelphia. The investigation focused on a robbery of $175,000 in cash that occurred at the dealership on April 16, 1975, and on allegations that two officers of the dealership staged the robbery in order to repay loan-shark debts. The grand jury also heard testimony that the officers were making extortionate extensions of credit through the Chestnut Hill Lincoln-Mercury dealership.
In 1976, respondent Apfelbaum, then an administrative assistant to the District Attorney in Philadelphia, was called to testify because it was thought likely that he was an aider or abettor or an accessory after the fact to the allegedly staged robbery. When the grand jury first sought to question him about his relationship with the two dealership officials suspected of the staged robbery, he claimed his Fifth Amendment privilege against compulsory self-incrimination and refused to testify. The District Judge entered an order pursuant to 18 U. S. C. § 6002 granting him immunity and compelling him to testify. Respondent ultimately complied with this order to testify.
During the course of his grand jury testimony, respondent made two series of statements that served as the basis for his subsequent indictment and conviction for false swearing. The first series was made in response to questions concerning whether respondent had attempted to locate Harry Brown, one of the two dealership officials, while on a “fishing trip” in Ft. Lauderdale, Fla., during the month of December 1975. Respondent testified that he was “positive” he had not attempted to locate Brown, who was also apparently in the Ft. Lauderdale area at the time. In a second series of statements, respondent denied that he had told FBI agents that he had lent $10,000 to Brown. The grand jury later indicted respondent pursuant to 18 U. S. C. § 1623 (a) (1976 ed., Supp. II) for making these statements, charging that the two series of statements were false and that respondent knew they were false.
At trial, the Government introduced into evidence portions of respondent’s grand jury testimony in order to put the charged statements in context and to show that respondent knew they were false. The excerpts concerned respondent’s relationship with Brown, his 1976 trip to Florida to visit Brown, the discussions he had with Brown on that occasion, and his denial that he had financial dealings with the automobile dealership in Philadelphia or had cosigned a loan for Brown. Respondent objected to the use of all the immunized testimony except the portions charged in the indictment as false. The District Court overruled the objection and admitted the excerpts into evidence on the ground that they were relevant to prove that respondent had knowingly made the charged false statements. The. jury found respondent guilty on both counts of the indictment.
The Court of Appeals for the Third Circuit reversed, holding that because the immunized testimony did not constitute “the corpus delicti or core of a defendant’s false swearing indictment” it could not be introduced. 584 F. 2d 1264, 1265 (1978). We granted certiorari because of the importance of the issue and because of a difference in approach to it among the.Courts of Appeals. 440 U. S. 957 (1979).
The differing views that this question has elicited from the Courts of Appeals are not surprising, because there are considered statements in one line of cases from this Court, and both statements and actual holdings in another line of cases, that as a matter of strict and literal reading cannot be wholly reconciled. Though most of the decisions of the Courts of Appeals turn on the interaction between perjury and immunity statutes enacted by Congress and the privilege against compulsory self-incrimination conferred by the Fifth Amendment to the United States Constitution, it is of course our first duty to decide whether the statute relied upon in this case to sustain the conviction of respondent may properly be interpreted to do so. We turn now to decision of that question.
II
Did Congress intend the federal immunity statute, 18 U. S. C. § 6002, to limit the use of a witness’ immunized grand jury testimony in a subsequent prosecution of the witness for false statements made at the grand jury proceeding? Respondent contends that while § 6002 permits the use of a witness’ false statements in a prosecution for perjury or for making false declarations, it establishes an absolute prohibition against the use of truthful immunized testimony in such prosecutions. But this contention is wholly at odds with the explicit language of the statute, and finds no support even in its legislative history.
It is a well-established principle of statutory construction that absent clear evidence of a contrary legislative intention, a statute should be interpreted according to its plain language. Here 18 U. S. C. § 6002 provides that when a witness is compelled to testify over his claim of a Fifth Amendment privilege, “no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.” (Emphasis added.) The statute thus makes no distinction between truthful and untruthful statements made during the course of the immunized testimony. Rather, it creates a blanket exemption from the bar against the use of immunized testimony in cases in which the witness is subsequently prosecuted for making false statements.
The legislative history of § 6002 shows that Congress intended the perjury and false-declarations exception to be interpreted as broadly as constitutionally permissible. The present statute was enacted as a part of the Organized Crime Control Act of 1970, after a re-examination of the broad transactional immunity statute enacted in response to this Court’s decision in Counselman v. Hitchcock, 142 U. S. 547 (1892). See Hostigar v. United States, 406 U. S. 441, 452, and n. 36 (1972). Its design was not only to bring about uniformity in the operation of immunity grants within the federal system, but also to restrict the grant of immunity to that required by the United States Constitution. Thus, the statute derives from a 1969 report of the National Commission on the Reform of the Federal Criminal Laws, which proposed a general use immunity statute under which “the immunity conferred would be confined to the scope required by the Fifth Amendment.” And as stated in both the Senate and House Reports on the proposed legislation:
“This statutory immunity is intended to be as broad as, but no broader than, the privilege against self-incrimination. ... It is designed to reflect the use-restriction immunity concept of Murphy v. Waterfront Commission, 378 U. S. 52 (1964) rather [than] the transaction immunity concept of Counselman v. Hitchcock, 142 U. S. 547 (1892).”
In light of the language and legislative history of § 6002, the conclusion is inescapable that Congress intended to permit the use of both truthful and false statements made during the course of immunized testimony if such use was not prohibited by the Fifth Amendment.
Ill
The limitation placed on the use of relevant evidence by the Court of Appeals may be justified, then, only if required by the Fifth Amendment. Respondent contends that his conviction was properly reversed because under the Fifth Amendment his truthful immunized statements were inadmissible at his perjury trial, and the Government never met its burden of showing that the immunized statements it introduced into evidence were not truthful. The Court of Appeals, as noted above, concluded that the Fifth Amendment prohibited the use of all immunized testimony except the “corpus delicti” or “core” of the false swearing indictment.
In reaching its conclusion, the Court of Appeals initially observed that a' grant of immunity must be coextensive with the Fifth Amendment. Kastigar v. United States, supra, at 449. It then reasoned that had respondent not been granted immunity, he would have been entitled under the Fifth Amendment to remain silent. And if he had remained silent, he would not have answered any questions, truthfully or falsely. There consequently would have been no testimony whatsoever to use against him. A prosecution for perjury committed at the immunized proceeding, the Court of Appeals continued, must be permitted because “as a practical matter, if immunity constituted a license to lie, the purpose of immunity would be defeated.” Such a prosecution is but a “narrow exception” carved out to preserve the integrity of the truth-seeking process. But the subsequent use of statements made at the immunized proceeding, other than those alleged in the indictment to be false, is impermissible because the introduction of such statements cannot be reconciled with the privilege against self-incrimination. 584 F. 2d, at 1269-1271.
A
There is more than one flaw in this reasoning. Initially, it presumes that in order for a grant of immunity to be “coextensive with the Fifth Amendment privilege,” the witness must be treated as if he had remained silent. This presumption focuses on the effect of the assertion of the Fifth Amendment privilege, rather than on the protection the privilege is designed to confer. In so doing, it calls into question the constitutionality of all immunity statutes, including “transactional” immunity statutes as well as “use” immunity statutes such as § 6002.- Such grants of immunity would not provide a full and complete substitute for a witness’ silence because, for example, they do not bar the use of the witness’ state-merits in civil proceedings. Indeed, they fail to prevent the use of such statements for any purpose that might cause detriment to the witness other than that resulting from subsequent criminal prosecution.
This Court has never held, however, that the Fifth Amendment requires immunity statutes to preclude all uses of immunized testimony. Such a requirement would be inconsistent with the principle that the privilege does not extend to consequences of a -noncriminal nature, such as threats of liability in civil suits, disgrace in the community, or the loss of employment. See, e. g., Brown v. Walker, 161 U. S. 591, 605-606 (1896); Smith v. United States, 337 U. S. 137, 147 (1949); Ullmann v. United States, 350 U. S. 422, 430-431 (1956); Uniformed Sanitation Men Assn. v. Commissioner of Sanitation, 392 U. S. 280, 284-285 (1968); Gardner v. Broderick, 392 U. S. 273, 279 (1968).
And this Court has repeatedly recognized the validity of immunity statutes. Kastigar v. United States, 406 U. S., at 449, acknowledged that Congress included immunity statutes in many of the regulatory measures adopted in the first half of this century, and that at the time of the enactment of 18 U. S. C. § 6002, the statute under which this prosecution was brought, there were in force over 50 federal immunity statutes as well as similar laws in every State of the Union. 406 U. S., at 447. This Court in Ullmann v. United States, supra, stated that such statutes have “become part of our constitutional fabric.” 350 U. S., at 438. And the validity of such statutes may be traced in our decisions at least as far back as Brown v. Walker, supra.
These cases also establish that a strict and literal reading of language in cases such as Counsel-man v. Hitchcock, 142 U. S., at 585 — that an immunity statute “cannot abridge a constitutional privilege, and that it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect” — does not require the sort of “but for” analysis used by the Court of Appeals in order to enable it to survive attack as being violative of the privilege against compulsory self-incrimination. Indeed, in Brown v. Walker, supra, at 600, this Court stated that “[t]he danger of extending the principle announced in Counselman v. Hitchcock is that the privilege may be put forward for a sentimental reason, or for a purely fanciful protection of the witness against an imaginary danger, and for the real purpose of securing immunity to some third person, who is interested in concealing the facts to which he would testify.” And in Kastigar v. United States, we concluded that “[t]he broad language in Counselman relied upon by petitioners was unnecessary to the Court’s decision, and cannot be considered binding authority.” 406 U. S., at 454-455. Kastigar also expressly declined a request by the petitioner to reconsider and overrule Brown v. Walker, supra, and Ullmann v. United States, supra, and went on to expressly reaffirm the validity of those decisions.
The reasoning of the Court of Appeals is also internally inconsistent in that logically it would not permit a prosecution for perjury or false swearing committed during the course of the immunized testimony. If a witness must be treated as if he had remained silent, the mere requirement that he answer questions, thereby subjecting himself to the possibility of being subsequently prosecuted for perjury or false swearing, places him in a position that is substantially different from that he would have been in had he been permitted to remain silent.
All of the Courts of Appeals, however, have recognized that the provision in 18 U. S. C. § 6002 allowing prosecutions for perjury in answering questions following a grant of immunity does not violate the F'fth Amendment privilege against compulsory self-incrimination. And we ourselves have repeatedly held that perjury prosecutions are permissible for false answers to questions following the grant of immunity. See, e. g., United States v. Wong, 431 U. S. 174 (1977); United States v. Mandujano, 425 U. S. 564 (1976) (plurality opinion) ; id., at 584-585 (Brennan, J., concurring in judgment); id., at 609 (Stewart, J., joined by Blackmun, J., concurring in judgment).
It is therefore analytically incorrect to equate the benefits of remaining silent as á result of invocation of the Fifth Amendment privilege with the protections conferred by the privilege — protections that may be invoked with respect to matters that pose substantial and real hazards of subjecting a witness to criminal liability at the time he asserts the privilege. For a grant of immunity to provide protection “coextensive” with .that of the Fifth Amendment, it need not treat the witness as if he had remained silent. Such a conclusion, as noted above, is belied by the fact that immunity statutes and prosecutions for perjury committed during the course of immunized testimony are permissible at all.
B
The principle that the Fifth Amendment privilege against compulsory self-incrimination provides no protection for the commission of perjury has frequently been cited without any elaboration as to its underlying rationale. See, e. g., Bryson v. United States, 396 U. S. 64, 72 (1969); United States v. Knox, 396 U. S. 77, 82 (1969). Its doctrinal foundation, as relied on in both Wong and Mandujano, is traceable to Glickstein v. United States, 222 U. S. 139, 142 (1911). Glickstein stated that the Fifth Amendment “does not endow the person who testifies with a license to commit perjury,” ibid., and that statement has been so often repeated in our cases as to be firmly established constitutional law. But just as we have refused to read literally the broad dicta of Counselman, supra, we are likewise unwilling to decide this case solely upon an epigram contained in Glickstein, supra. Thus, even if, as the Court of Appeals said, a perjury prosecution is but a “narrow exception” to the principle that a witness should be treated as if he had remained silent, it does not follow that the Court of Appeals was correct in its view of the question before us now.
Perjury prosecutions based on immunized testimony, even if they be but a “narrow exception” to the principle that a witness should be treated as if he had remained silent after invoking the Fifth Amendment privilege, are permitted by our cases. And so long as they are, there is no principle or decision that limits the admissibility of evidence in a manner peculiar only to them. To so hold would not be an exercise in the balancing of competing constitutional rights, but in a comparison of apples and oranges. For even if both truthful and untruthful testimony from the immunized proceeding are admissible in a subsequent perjury prosecution, the exception surely would still be properly regarded as “narrow,” once it is recognized that the testimony remains inadmissible in all prosecutions for offenses committed prior to the grant of immunity that would have permitted the witness to invoke his Fifth Amendment privilege absent the grant.
While the application of the Fifth Amendment privilege to various types of claims has changed in some respects over the past three decades, the basic test reaffirmed in each case has been the same.
“The central standard for the privilege’s application has been whether the claimant is confronted by substantial and 'real/ and not merely trifling or imaginary, hazards of incrimination. Rogers v. United States, 340 U. S. 367, 374; Brown v. Walker, 161 U. S. 591, 600.” Marchetti v. United States, 390 U. S. 39, 53 (1968).
Marchetti, which overruled earlier decisions of this Court in United States v. Kahriger, 345 U. S. 22 (1953), and Lewis v. United States, 348 U. S. 419 (1955), invalidated the federal wagering statutes at issue in Kahriger and. Lewis on the ground that they contravened the petitioner’s Fifth Amendment right against compulsory self-incrimination. The practical effect of the requirements of those statutes was to compel petitioner, a professional gambler engaged in ongoing gambling activities that he had commenced and was likely to continue, to choose between openly exposing himself as acting in violation of state and federal gambling laws and risking federal prosecution for tax avoidance. The Court' held that petitioner was entitled to assert his Fifth Amendment privilege in these circumstances. But it also observed that “prospective acts will doubtless ordinarily involve only speculative and insubstantial risks of incrimination.” 390 U. S., at 54. Thus, although Marchetti rejected “the rigid chronological distinction adopted in Kahriger and Lewis,” id., at 53, that distinction does not aid respondent here.
In United States v. Freed, 401 U. S. 601 (1971), this Court rejected the argument that a registration requirement of the National Firearms Act violated the Fifth Amendment because the information disclosed could be used in connection with offenses that the transferee of the firearm might commit in the future. In so doing, the Court stated:
“Appellees’ argument assumes the existence of a periphery of the Self-Incrimination Clause which protects a person against incrimination not only against past or present transgressions but which supplies insulation for a career of crime about to be launched. We cannot give the Self-Incrimination Clause such an expansive interpretation.” Id., at 606-607.
And Mr. Justice Brennan in his concurring opinion added:
“I agree with the Court that the Self-Incrimination Clause of the Fifth Amendment does not require that immunity be given as to the use of such information in connection with crimes that the transferee might possibly commit in the future with the registered firéarm.” Id., at 611.
In light of these decisions, we conclude that the Fifth Amendment does not prevent the use of respondent’s immunized testimony at his trial for false swearing because, at the time he was granted immunity, the privilege would not have protected him against false testimony that he later might decide to give. Respondent’s assertion of his Fifth Amendment privilege arose from his claim that the questions relating to his connection with the Chestnut Hill auto dealership would tend to incriminate him. The Government consequently granted him “use” immunity under § 6002, which prevents the use and derivative use of his testimony with respect to any subsequent criminal case except prosecutions for perjury and false swearing offenses, in exchange for his compelled testimony.
The Government has kept its part of the bargain; this is a perjury prosecution and not any other kind of criminal prosecution. The Court of Appeals agreed that such a prosecution might be maintained, but as noted above severely limited the admissibility of immunized testimony to prove the Government’s case. We believe that it could not be fairly said that respondent, at the time he asserted his privilege and was consequently granted immunity, was confronted with more than a “trifling or imaginary” hazard of compelled self-incrimination as a result of the possibility that he might commit perjury during the course of his immunized testimony. In United States v. Bryan, 339 U. S. 323 (1950), we held that an immunity statute that provided that “[n]o testimony given by a witness before . . . any committee of either House . . . shall be used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjury committed in giving such testimony,”, did not bar the use at respondent’s trial for willful default of the testimony given by her before a congressional committee. In. so-holding, we stated that “[t]here is, in our jurisprudence, no doctrine of ‘anticipatory contempt.’ ” Id., at 341.
We hold here that in our jurisprudence there likewise is no doctrine of “anticipatory perjury.” In the criminal law, both a culpable mens rea and a criminal actus reus are generally required for an offense to occur. Similarly, a future intention to commit perjury or to make false statements if granted immunity because of a claim of compulsory self-incrimination is not by itself sufficient to create a “substantial and ‘real’ ” hazard that permits invocation of the Fifth Amendment. Brown v. Walker, 161 U. S. 591 (1896); Rogers v. United States, 340 U. S. 367 (1951). Therefore, neither the immunity statute nor the Fifth Amendment precludes the use of respondent’s immunized testimony at a subsequent prosecution for making false statements, so long as that testimony conforms to otherwise - applicable rules of evidence. The excéption of a perjury prosecution from the prohibition against the use of immunized testimony may be a narrow one, but it is also a complete one. The Court of Appeals having held otherwise, its judgment is accordingly
Reversed.
Title 18 U. S. C. § 1623 (a) (1976 ed., Supp. II) provides in pertinent part:
“Whoever under oath ... in any proceeding before ... [a] grand jury of the United States knowingly makes any false material declaration . . . shall be fined not more than $10,000 or imprisoned not more than five years, or both.”
One of the officers was subsequently convicted of collecting extensions of credit by extortionate means in violation of 18 U. S. C. § 894, mail fraud in violation of 18 U. S. C. § 1341, racketeering in violation of 18 U. S. C. § 1962, and conspiracy in violation of 18 U. S. C. § 371.
Title 18 U. S. C. § 6002 provides:
“Whenever a witness refuses, on the basis of his privilege against self-inerimination, to testify or provide other information in a proceeding before or ancillary to—
“(1) a court or grand jury of the United States,
“(2) an agency of the United States,.or
“(3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House,
“and the person presiding over the proceeding communicates to the witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.”
After the issuance of the immunity order, respondent had still refused to testify before the grand jury. He agreed to testify after being held in civil contempt under 28 U. S. C. § 1826 and confined for six days.
The Seventh Circuit agrees with the Court of Appeals below that the Government may introduce into evidence so much of the witness’ testimony as is essential to establish the corpus delicti of the offense of perjury. United States v. Patrick, 542 F. 2d 381, 385 (1976). The Second and Tenth Circuits have held that false immunized testimony is admissible, but truthful immunized testimony is not, in a subsequent prosecution for perjury. United States v. Dunn, 577 F. 2d 119, 125-126 (CA10 1978), rev’d on other grounds, 442 U. S. 100 (1979); United States v. Berardelli, 565 F. 2d 24, 28 (CA2 1977); United States v. Moss, 562 F. 2d 155, 165 (CA2 1977), cert. denied, 435 U. S. 914 (1978); United States v. Housand, 550 F. 2d 818, 822 (CA2 1977); United States v. Kurzer, 534 F. 2d 511, 518 (CA2 1976). The Sixth and Eighth Circuits have held that immunized testimony may be used for any purpose in such a prosecution. Daniels v. United States, 196 F. 459, 462-463 (CA6 1912); Edelstein v. United States, 149 F. 636, 642-644 (CA8 1906).
A principal reason for this divergence in approach originates in the statement in Counselman v. Hitchcock, 142 U. S. 547, 585 (1892), that an immunity statute “cannot abridge a constitutional privilege, and that it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect.” This language was reiterated only last Term in New Jersey v. Portash, 440 U. S. 450, 456-457 (1979).
As discussed in Part III, infra, strictly speaking even a “transactional” immunity statute, to say nothing of a “use” immunity statute, does not conform to this definition: The mere grant of immunity and consequent compulsion to testify places a witness asserting his Fifth Amendment privilege in the dilemma of having to decide whether to answer the questions truthfully or falsely, a dilemma he never would have faced had he simply been permitted to remain silent upon the invocation of his privilege. Yet properly drawn immunity statutes have long been recognized as valid in this country. Infra, at 125. And it is likewise well established that one may be prosecuted for making false statements while giving immunized testimony. Infra, at 126-127.
A source of further difficulty for the Courts of Appeals is language from our recent decisions that, if taken literally, would preclude the introduction of immunized testimony even for the purpose of establishing the “corpus delicti” or core of the perjury offense. In Kastigar v. United States, 406 U. S. 441, 453 (1972), in which we upheld the constitutionality of this immunity statute against a challenge that it did not provide protection coextensive with the Fifth Amendment, we said that it “prohibits the prosecutorial authorities from using the compelled testimony in any respect.” And in New Jersey v. Portash, supra, at 459, we stated that under the Fifth and Fourteenth Amendments “a defendant’s compelled statements . . . may not be put to any testimonial use whatever against him in a criminal trial. ‘. . . [Any criminal trial use against a defendant of his involuntary statement is a denial of due process of law.’ ” (Emphasis in original.)
Doubtless as a result of these divergent holdings and statements none of the Court of Appeals decisions referred to in footnote 5, supra, holds that jalse immunized testimony may not form the basis for a prosecution for perjury or false swearing, but they differ as to how much of the relevant immunized testimony other than that asserted by the Government to be false may be introduced in such a prosecution.
Pub. L. 91-452, §201 (a), 84 Stat. 926. The purpose of the Act was “to seek the eradication of organized crime in the United States by-strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.” 84 Stat. 923.
See, e. g., Measures Relating to Organized Crime, Hearings on S. 30, etc., before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 282-284 (1969) (remarks of Representative Poff and Senator McClellan). At the time the new statute was being considered, there were more than 50 separate federal immunity statutes. Id., at 282.
Second Interim Report of the National Commission on Reform of Federal Criminal Laws, Mar. 17, 1969, reproduced in Hearings on S. 30, supra n. 8, at 292. See also id., at 15, 326; National Commission on Reform of Federal Criminal Laws, Working Papers 1405 (1970).
S. Rep. No. 91-617, p. 145 (1969); H. R. Rep. No. 91-1549 p. 42 (1970). Representative Poff, the bill’s chief sponsor in the House, quoted Mr. Justice White’s observation in Murphy v. Waterfront Comm’n, 378 U. S. 52, 107 (1964), that “‘[i]mmunity must be as broad as, but not harmfully and wastefully broader than, the privilege against self-incrimination.’” 116 Cong. Rec. 35291 (1970). We express no opinion as to the possible intimation in the Reports that the Fifth Amendment would have prohibited an immunity statute any broader than § 6002.
Thus, the Court of Appeals’ position is basically a halfway house that does not withstand logical analysis. If the rule is that a witness who is granted immunity may be placed in no worse a position than if he had been permitted to remain silent, the principle that the Fifth Amendment does not protect false statements serves merely as a piece of a legal mosaic justified solely by stare decisis, rather than as part of a doctrinally consistent view of that Amendment.
Thus, the Court observed:
“Petitioner was confronted by a comprehensive system of federal and state prohibitions against wagering activities; he was required, on pain of criminal prosecution, to provide information which he might reasonably suppose would be available to prosecuting authorities, and which would surely prove a significant ‘link in a chain’ of evidence tending to establish his guilt.” 390 U. S., at 48.
And “[e]very aspect of petitioner’s wagering activities,” the Court continued, “subjected him to possible state or federal prosecution,” and the “[information obtained as a consequence of the federal wagering tax laws is readily available to assist the efforts of state and federal authorities to enforce these penalties.” Id., at 47.
As recognized by one commentator, Shakespeare’s lines here express sound legal doctrine:
“His acts did not o’ertake his bad intent;
And must be buried but as an intent
That perish’d by the way: thoughts are no subjects,
Intents but merely thoughts.”
Measure for Measure, Act V. Scene 1; G. Williams, Criminal Law, The General Part 1 (2d ed. 1961).
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_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America, Appellee, v. Steven LYMAN, Appellant.
No. 89-5157.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 13, 1989.
Decided Dec. 29, 1989.
Rehearing and Rehearing En Banc Denied Feb. 22,1990.
Joseph S. Friedberg, Minneapolis, Minn., for appellant.
Lynn A. Zentner, Asst. U.S. Atty., Minneapolis, Minn., for appellee.
Before LAY, Chief Judge, BOWMAN and MAGILL, Circuit Judges.
LAY, Chief Judge.
Steven Charles Lyman was convicted of one count of possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1) (1982), and one count of the knowing and unlawful use of a firearm “during and in relation to a drug trafficking crime,” 18 U.S.C. § 924(c)(1) (1982 & Supp. Y 1987). He pleaded guilty to the first count but on the second he waived his right to a jury and stood trial before the district court. The district court found him guilty on that count, and imposed the mandatory five-year term, to run consecutive to the sentence imposed for count one. Lyman appeals the judgment of conviction on the second count.
FACTS
On August 19, 1988, Minneapolis police officers obtained a warrant and searched Lyman’s apartment. In a kitchen drawer and one cabinet, the police found cocaine and paraphernalia used in weighing, cutting, and packaging the drug. The cabinet also contained ammunition. In another kitchen cabinet police found three or four cloth bags pulled shut with drawstrings. The record describes these as “Crown Royal” bags, originally manufactured to hold bottles of liquor sold under that brand name. One of these bags contained a loaded pistol. The ammunition found in the other cabinet fit this handgun. In the other Crown Royal bags the police found assorted coins, but this cabinet contained no drugs or drug paraphernalia. The police found customer records and more cocaine in the adjacent dining area.
The district court found that Lyman intended the handgun “to be available for possible use during drug transactions.” The court emphasized that Lyman kept the gun in the kitchen where he also kept his supply of cocaine, and the gun was fully loaded. Because he intended to have the gun available, the court concluded that Lyman used the gun in relation to drug trafficking, in violation of 18 U.S.C. § 924(c)(1).
Lyman now urges on appeal that there existed an insufficient nexus between his possession of the firearm and his drug trafficking offense. He urges that he neither used nor carried the gun “during and in relation to any crime of violence or drug trafficking crime” as required to convict under 18 U.S.C. § 924(c)(1). The government urges that mere possession of a gun — even constructive possession — by a drug trafficker is sufficient evidence for conviction under section 924(c)(1). We cannot agree that mere possession of a gun can sustain a conviction under section 924(c)(1). However, because in this case we find a sufficient nexus between the gun and the drug trafficking offense, we affirm the judgment of the district court.
DISCUSSION
Several other circuits have held that a conviction under section 924(c)(1) requires more than just possession of a firearm. In United States v. Theodoropoulos, 866 F.2d 587 (3d Cir.1989), the court held that guns found in a trash can on a porch outside defendant’s apartment could not be for use in relation to the drug offenses taking place inside the apartment. The court therefore set aside one count of conviction for violation of section 924(c)(1). However, the court held that the defendant could be convicted of illegal possession of the guns pursuant to 26 U.S.C. § 5861 (1982). Id. at 595-97. Other circuits also have distinguished possession and use. See United States v. McGhee, 882 F.2d 1095, 1099 (6th Cir.1989) (guns concealed in hidden compartments in defendant’s house might not have been sufficiently readily available to support a conviction under section 924(c)(1), but under the lower guideline standard defendant could be found to possess the guns); United States v. Feliz-Cordero, 859 F.2d 250, 254 (2d Cir.1988) (“[Sjection 924(c) requires more than mere possession of.a firearm”).
The government argues that our decisions in United States v. Matra, 841 F.2d 837 (8th Cir.1988), and United States v. LaGuardia, 774 F.2d 317 (8th Cir.1985), stand for the proposition that mere possession suffices for conviction. The facts of these cases show, however, that the defendants did more than possess the guns; they created armed fortresses with several guns strategically placed for immediate use in an emergency. In Matra, police found ammunition in the kitchen, dining room, and in plain view in the two living rooms. They discovered loaded pistols hidden in the cushions of two living room sofas, and another gun sticking out of the zipper of a vacuum cleaner bag. In one bedroom a pistol lay under the bedcovers, and in another bedroom the police found a loaded assault rifle, loaded submachine gun, and a loaded shotgun. This court held that although the defendant did not have a gun on his person, he had control over the guns and ready access to them, and they clearly were “an integral part of his criminal undertaking.” 841 F.2d at 843. The court had no difficulty holding that this record sufficiently supported the finding that the defendant “used” the guns during and in relation to drug offenses.
In LaGuardia, a search of the defendants’ apartment uncovered, in addition to drugs, a loaded pistol in a purse in the defendants’ bedroom, a loaded gun on a shelf in their hallway, and a rifle in the trunk of their car. This court held that the presence and availability of the weapons was such that they “had undoubted utility in the protection of the valuable supply [of drugs] and of the cash on hand.” 774 F.2d at 321. In light of the evident need for protection, the evidence was sufficient to support the jury’s conclusion that the defendants “used” the weapons in relation to their drug trafficking crime. Id. Clearly, an abundance of loaded weapons strategically placed throughout a crack house amounts to more than mere possession; it shows readiness to use the weapons to support the drug operation should need arise.
The government also asserts that our decision in United States v. Brett, 872 F.2d 1365 (8th Cir.) cert. denied, — U.S. -, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989), represents a broad interpretation of “use”. The police in Brett raided a crack house and found a gun in the possession of a person other than the defendant Gray, who fled the scene and was arrested several blocks away. The government implies that by upholding the section 924(c)(1) conviction against Gray, this court expanded the meaning of “use” beyond the holdings of LaGuardia and Matra. The government fails to note that Gray was found to be a co-conspirator in the distribution of cocaine from a crack house. Gray’s co-conspirator admitted that he held the gun in order to provide security for the house’s drug operations. Id. at 1368. This admission clearly proved intent by all members of the conspiracy to rely on the gun in an emergency.
While more than mere possession is required for a conviction under section 924(c)(1), the defendant need not actually brandish or discharge the weapon. United States v. Matra, 841 F.2d at 843. The legislative history makes clear that the key is whether the circumstances indicate “that the defendant intended to use the gun if a contingency arose or to make his escape.” S.Rep. No. 225, 98th Cong., 2d Sess. 1, 314 n. 10 (1983) reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3492 n. 10. This court has held that the intent to use a weapon or weapons in connection with a drug trafficking offense may be inferred by their “presence and availability in light of the evident need.” United States v. LaGuardia, 774 F.2d at 321. We think the Second Circuit in Feliz-Cordero succinctly states the standard for determining “use” under section 924(c)(1):
[I]n order for possession of a firearm to come within the “uses” provision of section 924(c), one of the following is required: i) Proof of a transaction in which the circumstances surrounding the presence of a firearm suggest that the possessor of the firearm intended to have it available for possible use during the transaction; or ii) The circumstances surrounding the presence of a firearm in a place where drug transactions take place suggest that it was strategically located so as to be quickly and easily available for use during such a transaction.
United States v. Feliz-Cordero, 859 F.2d at 254.
Based on this standard, the Second Circuit set aside a conviction for use of a gun found in a dresser drawer in the same apartment where the defendant kept drug paraphernalia. The court stated:
On the evidence presented, there is no basis to conclude that the gun would have been quickly accessible if needed. Rather under the circumstances of this case, the intent to use the firearm must be presumed from the fact that a loaded gun was found in the same room as drug paraphernalia during the course of a search pursuant to a warrant. This is not sufficient evidence to sustain a conviction, even in light of our recognition of the frequent connection between firearms and narcotics trafficking.
Id. Lyman argues that finding a violation in this case contravenes the Second Circuit’s admonition not to presume intent to use a firearm merely from the fact that it was found in the same room as drug paraphernalia.
We agree that this case is closer than Matra, LaGuardia or Brett. In Matra and LaGuardia an abundance of guns was in easy reach of the defendants. In Brett the gun was on the person of the defendant’s co-conspirator, who admitted his intent to use it if necessary. In the present case a single loaded handgun was in a closed cloth bag in a kitchen cabinet next to two or three other outwardly identical bags.
Nevertheless, we think the totality of circumstances here provides a sufficient basis to infer Lyman’s intent to use the gun. Moreover, while it is not necessary for us either to accept or reject the Second Circuit’s ruling, we find here a stronger nexus between the gun and drug trafficking than was the case in Feliz-Cordero. In Feliz-Cordero two brothers occupied apartments in the same building. The defendant, Feliz-Cordero, lived in apartment 3 and his brother, Feliz-Encarnacion, occupied apartment 5. A drug sale took place between a government informant and Fel-iz-Encarnacion in apartment 5. Some discussion of drug business among the two brothers and the informant occurred in apartment 3, but no drug sales. Later the police obtained a warrant to search both apartments 3 and 5. In apartment 5 the police found cocaine, cocaine base, and drug paraphernalia. In Feliz-Cordero’s apartment they found a small quantity of cocaine, drug records, cash, a beeper, and, in a bedroom dresser drawer, a loaded revolver. 859 F.2d at 251-52. The opinion does not disclose whether all of the items seized from Feliz-Cordero’s apartment were found together in the same room, nor whether the discussions of drug business took place in the bedroom where the revolver was stored. The case therefore does not reveal whether the gun was located in the same room or immediate vicinity where drug transactions actually occurred or were likely to have occurred, or where an agent or associate of a drug dealer might have stood guard during a drug transaction.
That fact distinguishes the present case. In the present case the record discloses that the gun was located in the area of the apartment where Lyman actually conducted his drug trade. All of the drug-related evidence was seized from the kitchenette and its adjacent dining area. Having a loaded gun present in the same area where transactions took place makes it more likely that the gun would have been available if needed, and hence that the defendant intended to use it in an emergency. Based on the evidence in the record the district court was not clearly erroneous in finding that the presence and availability of the gun demonstrated intent to use it. The judgment of conviction is affirmed.
. The Honorable Harry H. MacLaughlin, United States District Judge for the District of Minnesota.
. Under section 2D1.1(b)(1) of the sentencing guidelines the defendant may receive a two point enhancement for possession of a firearm during the commission of a crime. The Application Note states plainly that "[t]he adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." United States Sentencing Commission, Guidelines Manual, § 2D1.1, Comment, (n. 3) (Nov. 1989).
. Lyman testified that he conducted drug transactions both in the apartment and away from it.
. The fact that a gun is located in a room that is not the center of drug transactions does not preclude the possibility that a drug dealer intended to use it to support his operations. Certainly if a drug house is an armed fortress with guns in several rooms, it is logical to surmise that even if the person actually conducting the transaction could not reach in an emergency some of the guns located in other rooms, he might rely on his associates to retrieve and use them in his aid. Each case turns on its specific facts. The key is always whether the placement of the gun or guns suggests they would be quickly available for use in an emergency.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_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.
MERRELL SOULE CO. v. POWDERED MILK CO. OF AMERICA.
Circuit Court of Appeals, Second Circuit.
April 6, 1925.
No. 300.
1. Parents ©=>318(1) — Allowance for profits, not actually gained, not permissible in accounting for infringement.
In an accounting for infringement of patent, award for profits, admittedly not based on actual gains from business in which infringement was committed, and which actually showed a loss, held not sustainable.
2. Patents ©=>325 — Allowance tor auditing books of patent infringer not sustainable in absence of profits.
In accounting for patent infringement, allowance to plaiuüfí for overhauling- defendant’s books cannot be sustained where defendant realized no profits.
3. Patents ©=>3l9(i) — Damages may be awarded on royalty basis, though infringer made no profit.
Though infringer realized no profits, recovery may be awarded on royalty basis, if tho evidence indicates any reasonable method upon which damages may be assessed against defendant for his trespass.
4. Patents ©=>319(1) — .Plaintiff entitled to damages for infringement of patent on “reasonable royalty” basis.
In accounting for infringement of closely held patent, although defendant actually operated his plant at a loss, and- much of profitable conduct of plaintiff’s business depended upon pre-existing method of preparing milk for patented process, evidence held, to warrant recovery of damages on “reasonable royalty” basis.
5. Patents ©=>319(4) — interest on damages upon fixed royalty basis oaEoiilated from tim® royalty would have been due.
In accounting for infringement of a patent, interest upon damages assessed upon a fixed royalty basis may be calculated from the time when the royalty would have been due.
6. Patents ©=>319(4) — Interest on damages assessed on reasonable royalty basis discretionary.
In accounting for infringement of a patent, interest on damages assessed upon reasonable royalty basis is discretionary.
Appeal from the District Court of the United States for the Western District of Now York.
Action by the Merrell So-ule Company against the Powdered Milk Company of America. Judgment for plaintiff (2 F.[2d,] 107), and defendant appeals.
Reversed, with directions.
Letters patent were issued to Stauf in 1901 (No. 666,711) for a process of converting milk into a dry powder soluble in water. This patent in this case, was sustained in the court below in 1914. 215 F. 922. That decision was affirmed in this court on March 9, 1915 (222 F. 911, 138 C. C. A. 391), and the patent declared to bo one of worth and entitled to a liberal interpretation.
The usual accounting was directed, and proceedings before the master began January 8, 1917, and his report wa.s filed May 23, 1924. With some modifications, not now important, the report was confirmed, and final decree entered on behalf of plaintiff September 12,1924.
This decree awarded the plaintiff as profits, “which the defendant has made by reason of the infringement herein found,” amounting to $51,436.89. It further granted plaintiff recovery for $2,841.25, being a “disbursement made by the plaintiff in conducting an examination and audit of defendant’s books.”
From this final decree defendant appealed.
Archibald Cox and Harry A. English, both of New York City, for appellant.
Howard P. Denison and Eugene A. Thompson, both of Syracuse, N. Y., for appellee.
Before ROGERS, HOUGH, and HAND, Circuit Judges.
HOUGH, Circuit Judge
(after stating- the facts as above). The master declared what he considered to be the profits derived from infringement by defendant, and also what he regarded as a proper award of damages on the basis of a reasonable royalty. ‘The court below, having- substantially affirmed the finding as to profits did not pass upon damages, but the whole case having been appealed, and, it being assigned for error inter alia that the District Court did not hold “that there was no legal proof upon which a judgment for more than nominal damages could be based,” we axe required to consider the whole record and to declare what judgment should have been entered on the report.
The award of profits is admittedly not based upon any aetual gains obtained by defendant from the business in which, in common parlance, the infringement was committed. What defendant did was this; It acquired a creamery; i. e., an establishment designed for the making of butter. For a creamery, skim milk is a waste product; yet defendant thought it better business to buy the creamery and utilize the skim milk there produced, rather than to set up a new establishment and buy its milk skimmed for the purpose -of making milk powder therefrom.
This may not have been an economical method of pursuing the milk powder business; but there is no evidence tending to show that the butter enterprise was a blind or shelter for infringement, nor that defendant did not expect or hope to make a profit out of the manufacture of butter as well as from milk powder. Neither is it denied that during the infringing period, which extended from August, 1910, to April, 1915, defendant’s entire business (i. e., the making of butter and powdered milk) showed a loss.
Defendant declared this fact by its account filed at the outset of proceedings before the master, and exhaustive investigation of defendant’s books by five employees of plaintiff (hereinafter referred to) established the fact beyond peradventure.
The master made an award of so-called profits, however, on the theory that defendant’s creamery was to be considered as two separate businesses — one, the business which defendant bought; the other, the business of making powdered milk. For the second business the basis or raw material was skim milk; but, since this skim milk was derived from a. creamery that was losing money, it cost so much that defendant ought not to have used it, but should have gone into the open market and bought cheaper skim milk, and, if this had been done, while in other respects defendant’s business was conducted as a unit, the separate or separable business of making powdered milk would have shown a profit; i. e., the amount declared and awarded to plaintiff.
This procedure is in our judgment inconsistent with the facts and opposed to the law. As to the facts, there is no satisfying proof that, considering the location of defendant’s ereamery, there was any sufficient supply of skim milk available for purchase, while the law is plain that even that trespasser, the infringer, is liable only for “aetual not possible gains,” and that there were no actual gains stands admitted. Rubber Co. v. Goodyear, 9 Wall. 801, 19 L. Ed. 566; Coupe v. Royer, 155 U. S. 565, 15 S. Ct. 199, 39 L. Ed. 263.
In the court below, this method of constructing an imaginary business for the defendant, and mulcting him in what he would have made had he embarked thereupon, was thought to be justified by Hemolin Co. v. Harway, 166 F. 434, 92 C. C. A. 186. We find no such ruling there made. In that ease defendant was and long had been engaged in making and selling presumably at market rates and profitably a well-known commercial article. The patent there in suit could be used to alter and better this commercial article — a process which defendant used, and so infringed. The court held that the profit on the infringing product should be separated; so much thereof as was represented by the market price of the old noninfringing article to belong to defendant, and the increased profit gained by infringement to accrue to the patentee. To construe that allocation of profits as warrant for separating one business into two, and punishing even an infringer for not having more successfully infringed, cannot be done in reason, and the procedure also renders the case opposed to the ruling decisions above quoted.
As there were no profits, the decree below was erroneous in awarding them, and with the profits the allowance for overhauling defendant’s books must also go. This allowance was thought to be justified by Flat-Slab Co. v. Turner (C. C. A.) 285 F. 257, 284. That decision put on the infringer the cost of an accountant “employed by the master” to go over the infringer’s books. The practice is perilous, and we are not now called upon either to approve or condemn; but we point out that the award here is to the plaintiff, who sent its own chief accountant and four assistants to examine defendant’s books, and the major portion of the sum awarded consists of the salaries of these five men (regularly paid by plaintiff) for the time they expended on said books. The rest is apparently for travel and attendant expenses. The ease with which such a charge ean be abused is sufficient reason for extreme caution in permitting anything of the kind.
Our reason for disallowing the whole item is that there were no profits, but it is thought advisable to point out that the Plat-Slab Case is authority for nothing but employment by the master of an accountant; it does not cover this attempted transfer to defendant of a substantial portion of plaintiff’s salary list.
The question remains whether plaintiff has made out a case for damages, on what has come to be called the “reasonable royalty” basis.
In Consolidated, etc., Co. v. Diamond, etc., Co. (D. C.) 226 F. 455, affirmed 232 F. 475, 146 C. C. A. 469, it was said at page 459, that Dowagiac, etc., Co. v. Minnesota, etc., Co., 235 U. S. 641, 35 S. Ct. 221, 59 L. Ed. 398, may bo regarded “as settling the mooted question as to whether a reasonable royalty may be allowed, and as laving down a more liberal rule, to be applied with caution.”
With this we agree; and the historical development of the matter is that the court in the Dowagiae Case had before it two lines of its own decisions — one very strict, of which Coupe v. Royer, supra, was commonly, and we think naturally, regarded as a striking illustration; the other apparently recommending a resort to “general evidence” in order to obtain “a fair measure of damages or even an approximation thereof.” Of these decisions Suffolk Co. v. Hayden, 3 Wall. 315, 18 L. Ed. 76, and Root v. Railway Co., 105 U. S. 189, 26 L. Ed. 975, were the most commonly cited examples. The Dowagiae decision unquestionably indorsed the more liberal rule by holding that, where a patent had been kept as a close monopoly, and there was no established royalty, it is “permissible to show the value by proving what would have been a reasonable royalty, considering the nature of the invention, its utility and advantages, and the extent of the use involved.”
But we think any reader of that ruling decision will say that what turned the scale in favor of liberality was the line of cases there reviewed and coming from various lower courts, and particularly the judgment of Denison, J., in United States Frumentum Co. v. Lauhoff, 216 P. 610, 132 C. C. A. 614, decided while the Dowagiae Caso was under consideration. That learned judge has done more than any other one man to liberalize the matter of damages for infringement of a patent, and in the Prumentum Case (page 617, 132 C. C. A. 621) he well put the situation as it stood before his own decision. He said, and spoke from experience in saying, that “it is familiar knowledge * * * that experienced patent counsel have advised that, as a general rule, no recovery [of damages] that would pay the expense of litigation could be anticipated.” On the same page he stated convincingly the reasons why general damages “frequently spoken of as a ‘reasonable royalty’ ” ought to be recovered on exactly the principles that a jury had always been permitted to assess damages against one who by a trespass had injured any other species of personal property. He there pointed out inter alia that a jury could be shown to what extent the defendant had taken plaintiff’s patent property, the extent and use of that property, what share of the soiling price it was customary to allow for the use of such an invention, and experts might give useful opinions as to the value of the property appropriated by the infringer; also that from such evidence “not resting on any of the applicable exact methods of computation,” the “jury or the court [might] estimate in a general, but in a sufficiently accurate, way the injury to plaintiff caused by each infringing sale.” This is the more fully stated doctrine authoritatively approved by the Dowagiae decision, and it has boon received with general approbation.
In this court, Munger v. Perlman Corp. (C. C. A.) 275 F. 21, shows an instance in which the trial court had found at final hearing- that there was no basis for an award of profits or for an assessment of damages on lost sales, and that there was no established license rate, whereupon the matter was referred by an order using exactly the above-quoted language of the Dowagiae Case; and the method of computation by us approved under that order was substantially to consider the various estimates or opinions of persons more or less qualified to express them and arrive at a result, as would a jury.
More recently, in K. W. Ignition Co. v. Te Temco (C. C. A.) 283 F. 873, certiorari denied 260 U. S. 746, 43 S. Ct. 247, 67 L. Ed. 493, there was no opinion evidence (page 878) as to the rate of reasonable royalty; yet the court proceeded to assess damages on the basis of a royalty estimated as appropriate to the manufacturing and selling profits proved.
Still more recently, in Austin, etc., Co. v. Disc, etc., Co. (C. C. A.) 291 F. 301, certiorari denied 263 U. S. 717, 44 S. Ct. 180, 68 L. Ed. 522, it is well said (page 304): “Where general damages by way of a reasonable royalty are allowed there is no mathematical formula for their determination. The purpose in view in any particular ease is to determine what amount a person desiring to manufacture and sell the patented article would, as a business proposition, be willing to pay as a royalty; that is, what amount could he fairly pay * * and be able to make and sell in the market the patented article at a reasonable profit.” The learned court added that evidence directed to this end would be as “to the character of the invention, costs of manufacture, costs of marketing, sales prices, demand,” etc.; also that royalties paid “in more or less similar situations would be considered, although the weight of such evidence in any particular, ease might b§ slight.”
Result nowadays is that, since the Dowagiae decision opinion- has strongly held that the so-called rule of “reasonable royalty” means that, if the evidence indicates any reasonable method by which a jury could award general damages against a trespasser upon the patent property of the plaintiff, either the jury or the court may estimate' and award such damages.
■ In this case there is ample evidence that the patent was closely held; plaintiff was substantially the only authorized manufacturer of powdered milk under Staüf’s patent. Defendant did infringe by using that patented process, and did sell considerable quantities of a product that competed with the patented product at a time when plaintiff always had on hand and was ready and willing to sell the quantities of powdered milk actually sold by defendant.’ There is some evidence by persons acquainted with the powdered milk trade of what in their opinion would have been a reasonable royalty, and there is plain evidence, wholly uncontradieted, that during the entire period of infringement the plaintiff was making and selling its powdered milk at an average profit of 2.17 cents per pound. But there is also evidence that plaintiff made and makes its powdered milk, not only under Stauf’s patent, but by using a process of precondensation before applying the Stauf method, and it appears to us fairly shown that the economical and profitable conduct of plaintiff’s business as proven depends to some extent upon this preeondensing method of preparing milk for the patented process. The question then is, What would a reasonable man, who wished to go into this business in the hope of procuring a reasonable profit, be. willing to pay for the use of a necessary process, which, however, was íJüly a part of the whole process of making powdered milk?
There is ample evidence for a jury to act upon. Therefore there is enough to enable us to form opinion, and it is our opinion, and we so find, that a uniform royalty of one-half a cent per pound was as much as any one could reasonably be expected to pay for a license under the patent in suit. Defendant sold according to the master’s report 3,128,723 pounds of the powdered product; therefore the damages are assessed at $15,643.61.
There still remains the question of interest npon damages. If the damages had been assessed upon a fixed royalty basis, interest has long been allowed calculated from the time when the royalty would have been due. Walker (5th Ed.) § 571, citing eases. In Goodrich Co. v. Consolidated Co., 251 F. 617, 163 C. C. A. 611, certiorari denied 247 U. S. 519, 38 S. Ct. 580, 62 L. Ed. 1246, it was held that there was “no valid reason for withholding interest where the damages are based upon a reasonable royalty.” Page 624 (163 C. C. A. 618). And this decision was followed by the same court that decided the Frumentum Case in K. W. Ignition Co. v. Temco, supra (p. 880), and interest was awarded “from the date infringement ceased.”
While we are not disposed to depart from this as a general rule, still these are damages recovered' and recoverable in equity, and the rule is general that, especially in matters of tort, interest is in discretion. We so held in Pennsylvania, etc., Co. v. New York, etc., Co., 198 F. 778, 780. And the principle is thoroughly recognized in Bates v. Dresser, 251 U. S. 524, 40 S. Ct. 247, 64 L. Ed. 388.
In the condition of this record we should be inclined to refuse or limit interest if it were possible to allocate the blame for the intolerable and (even in patent causes) almost unheard of delay in this ease. It was more than a year and a half after this court approved the patent before any proceedings before the master began. The plaintiff put in its case in about a year, and after that testimony was taken at intervals far apart, until an agreement was reached to submit briefs to the master on January 15, 1921 — something more than three year’s before he reported. So far as we can see from the printed book, it was a case of arcades ambo. Therefore, reserving the right in a proper ease to treat interest on damages in equity as in discretion, we allow. interest from the date of order on the mandate of this court issued in March, 1915. The defendant will recover the costs of this appeal; the costs of the lower court are left to the discretion of that tribunal.
Decree reversed, with directions to enter a new decree in conformity with this opinion.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_partywinning
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
MARYLAND v. BLAKE
No. 04-373.
Argued November 1, 2005
Decided November 14, 2005
Kathryn Grill Graeff, Assistant Attorney General of Maryland, argued the cause for petitioner. With her on the briefs were J. Joseph Curran, Jr., Attorney General, and Annabelle L. Lisie and Diane E. Keller, Assistant Attorneys General.
James A. Feldman argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Clement, Acting Assistant Attorney General Richter, Deputy Solicitor General Dreeben, John P. Elwood, and Joel M. Gershowitz.
Kenneth W. Ravenell argued the cause for respondent. With him on the brief were Ivan J. Bates, Matthew A. S. Esworthy, and Jeffrey T. Green.
Briefs of amici curiae urging reversal were filed for the State of Texas et al. by Greg Abbott, Attorney General of Texas, Barry R. McBee, First Assistant Attorney General, R. Ted Cruz, Solicitor General, Don Clemmer, Deputy Attorney General, and Gena Bunn, Edward L. Marshall, and Fredericka Sargent, Assistant Attorneys General, and by the Attorneys General for their respective jurisdictions as follows: M. Jane Brady of Delaware, Robert J. Spagnoletti of the District of Columbia, Charles J. Crist, Jr., of Florida, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Michael A Cox of Michigan, Jim Petro of Ohio, W. A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Mark L. Shurtleff of Utah, and William Sorrell of Vermont; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.
Briefs of amici curiae urging affirmance were filed for the National Association of Criminal Defense Lawyers by James J. Tomkovicz and Joshua L. Dratel; and for the National Legal Aid and Defender Association by Steven B. Duke.
Per Curiam.
The writ of certiorari is dismissed granted. as improvidently
It is so ordered.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_genapel1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
COMMISSIONER OF INTERNAL REVENUE v. ROSENBLOOM FINANCE CORPORATION.
No. 5094.
Circuit Court of Appeals, Third Circuit.
Aug. 17, 1933.
Helen R. Carloss, Sewall Key and J. Louis Monarch, all of Washington, D. C. (C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and John D. Foley, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for petitioner.
Wm. W. Spalding, of Washington, D. C. (Mason, Spalding & McAtee, of Washington, D. C., of counsel), for respondent.
Before BUFFINGTON, DAYIS, and THOMPSON, Circuit Judges.
BUFFINGTON, Circuit Judge.
The underlying question in this tax case is whether whisky warehouse certificates owned by the Rosenbloom Finance Corporation, the taxpayer, were acquired by gift from its majority shareholder, Sol Rosenbloom. If acquired by gift, their value for ascertaining profit was their cost to the donor, $51,538.26. If not so acquired, their cost to the taxpayer was $269,494.97. The Board of Tax Appeals held the transaction was not a gift, and the Commissioner took this appeal. There is no dispute as to facts, and the question is wholly one of law. The facts, a full discussion thereof, and citations of authorities bearing on the case are set forth at full length in the findings and opinion of the Tax Board, and by reference thereto we avoid useless restatement.
The taxpayer paid Rosenbloom no money, stock, or other consideration therefor. It was a voluntary transfer of property without consideration or compensation therefor, and the form it took involved no ownership by any third party, and, whatever form or semblance it took, in substance and reality it was a transfer with the aim of avoiding tax. In our judgment it was a gift. The decree of the Tax Board will therefore be set aside and the record remanded for due procedure in accord herewith.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America v. Harold E. MILLS, Appellant.
No. 22444.
United States Court of Appeals, District of Columbia Circuit.
Argued En Banc Feb. 26, 1971.
Decided May 10, 1972.
Mr. Peter F. Rousselot, Washington, D. C. (appointed by this Court), with whom Mr. Richard B. Ruge, Washington, D. C., was on the brief, for appellant.
Mr. Robert C. Crimmins, Asst. U. S. Atty., for appellee. Messrs. Thomas A. Flannery, U. S. Atty., at the time the brief was filed, and Roger E. Zuckerman, Asst. U. S. Atty., were on the brief, for appellee.
ON REHEARING EN BANC
Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and WRIGHT, McGOWAN, TAMM, LEV-ENTHAL, ROBINSON, MacKINNON, ROBB, and WILKEY, Circuit Judges, sitting en banc.
LEVENTHAL, Circuit Judge:
Appellant was convicted by a jury upon a three-count indictment charging violations of the Federal narcotics laws. The central question is the admissibility in evidence of narcotics found in appellant’s possession on a search of his pockets at the police station, where he was brought following an arrest for the petty offense of driving with a learner’s permit while unaccompanied by a licensed driver. The appeal was originally heard by a division of this court, which affirmed the conviction, one judge dissenting, as to counts one and two of the indictment. The denial of appellant’s motion to suppress the narcotics, made at pre-trial hearing, and renewed at trial, was sustained on the ground that the inspection of the contents of appellant’s pockets was valid because he was to be detained in stationhouse confinement. Appellant had the right to post $50 collateral for that petty offense, and had he been accorded that opportunity he would, with $171 in cash on him, have been permitted to leave the stationhouse forthwith, without any search of his person. We hold that the stationhouse inspection of the contents of his pockets was an unreasonable search, in violation of the guarantees of the Fourth Amendment, and that the evidence found as a result of this search is inadmissible.
I. FACTUAL BACKGROUND
On December 29, 1967, Patrolman Willie C. Ivery, Jr., of the Metropolitan Police, was on patrol in the neighborhood of Sixth and H Streets, N.E. At about 4:30 a. m. he observed an auto, driven by appellant, approaching him at an excessive rate of speed. He flagged the car down, walked over to it, and asked appellant, who was alone in the car, for his driver’s permit and the automobile registration. Appellant produced only a District of Columbia learner’s permit and did not have the registration. The officer told appellant that it was illegal to operate an automobile with a learner’s permit unless a licensed operator was with him. Appellant told him that he had just dropped off the car’s owner at a nearby restaurant. The officer then placed appellant under arrest for driving without a proper permit. Officer Ivery patted appellant down and found no weapons. He called for a scout car, which arrived shortly thereafter. The officers and appellant then drove to the nearby restaurant and there Craig Tatum, the owner of the car and a licensed operator, verified appellant’s account. Officer Ivery told Mr. Tatum that he would be cited for permitting an unlicensed driver to operate his car and asked Tatum to accompany him to the precinct. Tatum agreed, and Ivery went with him, following the other officers, who had charge of appellant, to the sta-tionhouse.
The difference in Officer Ivery’s handling of appellant by arrest, as distinguished from the citation procedure used with Mr. Tatum, was not due to any apprehension of danger from appellant, but was based on the officer’s understanding that appellant’s offense, as contrasted with Tatum’s, required an arrest procedure. Officer Ivery testified at trial that his “normal procedure” was to proceed by citation for petty offenses unless the person “disrespects me or something.” Tatum was asked to go to the station to pick up his articles; asked whether Mr. Mills had offended him, Ivery replied “No.” The trial transcript reveals that Mills stopped promptly on hearing the whistle, the officer quickly verified that Mills had had Tatum’s permission to drive the car, nothing turned up in the frisk for weapons conducted in the street, and Mr. Mills did not resist arrest in any way but was “very cooperative.” The reason Officer Ivery gave for arresting Mills, instead of proceeding by citation, was: “This is a different type of offense.. This type of offense always constitutes an arrest, having no D.C. permit.” It appears that police instructions had not caught up with a recent change in the law which made the arrest for this offense a matter of discretion. However, we assume that the arrest of Mills was valid.
As to events following the arrival of Mills at the police station, the police say that Mills was taken into the station-house through a side door, detained briefly in a small room, and was then delivered into the custody of Officer Ivery, who brought him to the booking desk. Ivery testified that Mills was then ordered to remove everything from his pockets, the standard procedure for persons to be held in stationhouse detention. Mills emptied his pockets — which contained more than $170 in cash — but was reluctant to expose whatever was in the left pocket of his jacket. Mills had stuck his hand in that pocket, according to the police; when Ivery assisted Mills in removing the hand, Mills was seen to be holding a small black change purse, the contents of which were later identified as 22 capsules of heroin and 33 capsules of cocaine.
While we accept the foregoing account for purposes of this case, we take note that Mills claims that in the small side, room, or back room, he was searched thoroughly, stripped of his clothing, that it was during this search that the narcotics were found, and that he was not brought to the booking desk until after the narcotics had been found during the strip-search in the small room.
II. THE UNREASONABLENESS OF THE SEARCH
Applicable Principle
In deciding whether the search was valid, our starting point, as noted above, is that the arrest of Mills for driving without a proper permit was valid. We do not rely upon the doctrine that when an arrest on a traffic charge is used as a pretext to justify a search for evidence of other crimes, the search is invalid. However, the bare fact that a person is validly arrested does not mean that he is subject to any and all searches that the arresting officer may wish to conduct. “[T]he mere fact of a lawful arrest does not end our inquiry.” Schmerber v. California, 384 U.S. 757, 769, 86 S.Ct. 1826, 1835, 16 L.Ed.2d 908 (1966). Under the Fourth Amendment, the validity of searches and seizures turns upon their reasonableness, and even when there is a valid arrest the search must be reasonably incident to the arrest.
In most situations, the reasonableness of the search of an arrested man is clear enough, for it is reasonable for an arresting officer “to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape” and “to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.” Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). Those justifications have no application for the case before us— even assuming that the scout car officers did not strip-search Mills in the side room, and that we take Officer Ivery’s account that the emptying of pockets followed on the booking for driving alone with a learner’s permit. There was no question of a stationhouse search for weapons or for evidence concerning the offense of driving without a proper permit; appellant was frisked at the time of the arrest, with no arms found, and the offense was proved completely at the time of the arrest. The validity of the search of Mills at the stationhouse must stand or fall on the premise that it was a predetention inventory, undertaken to hold and account for valuable or potentially dangerous personal property — such as rings, belts, watches or jewelry — during the detention of the person arrested. This is the theory underlying Officer Ivery’s trial testimony and it is defended by Government counsel.
We do not here consider the proper scope of a search that is supported by the premise of forthcoming confinement. In this case, no such justifying premise is available to validate the search of defendant Mills described by Officer Ivery. Having been arrested for a petty offense, Mills should have been informed of his opportunity, prescribed for that offense, to post $50 collateral and leave the precinct station. Instead, the police officer who conducted the booking proceeded forthwith to require Mills to empty his pockets. We think that was an unreasonable search.
The En Banc Remand Order
The pertinent facts appear in the trial transcript and in the transcript of remand proceedings in the District Court, which this court, en banc, ordered after hearing oral argument. Four judges dissented from that remand, being of the view that the appeal should be decided on the record already made. It is appropriate to identify and explain the basis of that remand order. The majority of the court is of the view that the remand was appropriate in light of the statute authorizing an appellate court to “require such further proceedings to be had as may be just under the circumstances.” 28 U.S.C. § 2106. On the disposition by the division drawn for the case, there were three opinions: Judge Robb was of the view that it was reasonable for the police to take charge of the contents of appellant’s pockets since he was about to be placed in a cell. Judge Fahy concurred, reserving his position if evidence other than contraband were seized. Judge Robinson dissented, being of the view that a rule authorizing an extensive booking search in case of arrest would provide incentive to make arrests, for the purpose of search, for offenses normally handled without arrest, and that an accommodation of all proper interests could be accomplished by permitting a “booking” search of an opaque container (here, the change purse) only if there was some reason to believe this was needed to avoid danger to the police.
On rehearing, the court en banc was required to grapple with the problem of police “inventory searches”- — when, why and to what extent were they needed and reasonable. It developed, on questioning at oral argument, that just as not all offenses lead to arrests, not all arrests lead to confinement. Counsel were asked to file supplementary memoranda concerning this possibility, and such memoranda, duly filed, set forth the outlines of the system in this jurisdiction under which a number of minor offenses — this one included — are of a collateral type, so that the offender may post collateral and depart without confinement. The court considered it in the interest of justice that this information be amplified in remand proceedings: to identify whether any police officer present had the function to inform the defendant that he could post collateral for his offense; whether this information was given defendant; and if so why defendant failed to post collateral.
This supplementary information was considered of possible materiality to a sound decision concerning the possible justification of so-called inventory searches. The questions posed with respect to defendant — who was arrested for a $50 collateral offense, and was detained although he had $171 in his pocket — were not only pertinent to justice in his case, but spotlighted questions of broader import, as will appear.
The foregoing established, in our view, a sound predicate for the court’s exercise of its remand authority. Appellate courts are called upon for two functions —to accord justice in the particular case; and to settle underlying principles of law. When cases raise constitutional or other basic questions, it is often a responsible exercise of the function to remand for a full record developed on hearing, rather than decide the matter on the record as made in the trial court. United States v. Robinson, 145 U.S.App.D.C. 46, 447 F.2d 1215 (en banc, 1971).
Pertinent Facts
A stipulation was entered into between the parties, prior to the remand hearing, as to the collateral system, and particularly police recognition that, if the offense is one for which collateral may be placed, offenders must be advised of their opportunity to post collateral, and are not subject to police inventory searches unless they are unable or refuse to post collateral. The stipulation reads as follows:
No. 1, the Government and defense stipulate that those who are brought to a police station for an offense for which collateral may be placed are advised of their privilege of posting collateral and are not searched at the station house.
Only those who are arrested for crimes for which there is no collateral and those unable to post collateral or refuse to do so are searched pursuant to Chapter 4, Section 3 of the Police Regulations prior to being placed in confinement.
Stipulation No. 2, no D.C. Permit, the offense Mr. Mills the defendant was charged with, was at the time of his arrest a collateral offense for which collateral was $50.00.
Stipulation No. 3, the Government and defendant further stipulate that as a matter of police practice, both the arresting and booking officer advise those arrested who are eligible for collateral of the collateral system, but since these officers are generally in each other’s presence at the booking, one or the other of the officers will advise the person arrested.
In addition, the District Judge found that Mills had $171 in cash on his person at the time of his arrest.
The District Court did not explicitly identify how it came about that Mills, with $171 in his pocket, failed to post collateral of $50 for the minor offense, and was processed and inventoried for stationhouse confinement.
Under Mills’ account there is no mystery: He testified that at the time of the booking his possession of narcotics had been discovered in the strip-search in the side room; and he further testified as to his understanding that he was booked for this narcotic offense. Narcotics possession is concededly an offense for which collateral is unavailable.
The Government’s justification is predicated upon the possibility that appellant was booked for the minor offense, was notified of the opportunity to post collateral, and declined to do so.
We are convinced, as the realistic conclusion from this record, that Mills was not given opportunity to avoid confinement by posting $50 collateral, and that he did not refuse to do so. Mills had $171 in his pocket — evidence of highest caliber in support of that conclusion. The practice, as stipulated, was for both arresting officer and booking officer, or one in the presence of the other, to advise those eligible for collateral of the collateral system. Officer Ivery was both arresting officer and booking officer for he took charge of the writing up of Mills’ offense. His actions and testimony make clear the difference in his approach with regard to Tatum, who was to be given opportunity to post collateral and depart, and Mills, who was to be detained. While Officer Ivery’s intervening death precluded his testifying at the remand hearing, his testimony at the pre-trial hearing (see note 8) establishes that he made the writing up of Tatum’s case the “first order of business” in order “not to detain him any longer since [Tatum’s] was a type of case where he could pay the ticket then or take a ticket and pay in five days, ten days, whichever he chose to do.” This first testimony points up that Officer Ivery handled Tatum with an approach appropriate for a “collateral” type offense, and that this was different from his approach for Mills. At trial, Officer Ivery testified that when he arrested Mills he did not ask whether Mills had sufficient money to post collateral for the offense (Tr. 47), and elaborated that Mills’ violation was one that always required an arrest, unlike Tatum’s, which permitted citation (Tr. 51). At the stationhouse, he made clear, Tatum’s violation only required that I “had to write a citation. I did not say I booked Mr. Tatum or proceeded or intended to book Mr. Tatum.” (Tr. 52). In view of Officer Ivery’s acknowledgement that he gave priority to the citation for Mr. Tatum because he had the choice of posting collateral, and particularly in view of the ample funds in Mr. Mills’ possession, the foregoing record amply establishes that Mr. Mills was not given an opportunity to post collateral.
In addition, we note that there is not a glimmer of a suggestion in Officer Ivery’s testimony — in either direct or cross-examination, either at the pre-trial hearing or at trial — that the booking of Mr. Mills, and conduct of an inventory search incident thereto, was accompanied by a reference, avowedly not accorded on the street, to any opportunity to post collateral. It was as part of the process of booking Mills that Ivery conducted the thorough search prescribed for persons “being placed in confinement.”
At the trial, Officer Ivery related on direct examination that he walked through the front entrance to the rear of the stationhouse where he took custody of appellant, who had just been brought in the side entrance by the transporting officers, and brought appellant to the front desk. He continued (Trial Tr. 30):
A. At this time I proceeded to write two violations for having no D.C. permit and also Mr. Tatum permitting an unlicensed operator.
Q. Did there ever come a time when you made a search?
A. Yes, I did.
Q. Will you tell us, please, if you will—
A. After completing the violations, normally we take the property from the prisoners that they may effect an escape or anything that he may have access to that would harm himself or some other person. This was taken away at the desk where he was standing, and usually I ask the prisoner if he will do this himself, and if they cooperate, then you don’t have to do it.
Q. What did he do in this case?
A. Well, he cooperated and took everything out of his pockets and laid it on the counter and he was deprived use of it. And later I noticed his reluctance to pull his left hand out of his pocket.
Q. What did you do upon noticing that?
A. Then I asked him to take it out and he was still reluctant, so I assisted. So this is when this purse fell out of his pocket, black change purse.
He reiterated and amplified the procedure that had been followed in his answers on cross-examination (Trial Tr. 53-57):
“A. First, I accepted the prisoner [Mills] [from the officers in the scout car] and brought him up to the counter and proceeded to write the citations, both for Mr. Mills and also for Mr. Tatum.
Q. You accepted the prisoner?
A. Yes.
Q. Then you walked the prisoner up to the booking desk?
A. Up to the area where we take the property. You could call it the booking desk. It is associated with the clerical positions in the area where the clerks work in the precinct.
Q. Then after writing a citation for Mr. Tatum you searched Mills; is that correct?
A. Well, after completing the citation for Mr. Mills, then I advised him to take everything out of his pockets, and the normal procedure is to lay it on the counter.
Q. Did you personally conduct the search of Mr. Mills?
A. Yes, I did.
Q. Now the search at the station house was what you would also call patting down the defendant; isn’t that correct?
A. No, this is a thorough search.
Q. You found the narcotics after patting him down, searching for a weapon more or less at the station house, but you didn’t find them on the street after patting him down.
A. The station house was a more thorough search as I stated earlier. This is when you take the belt, jewelry, watches, rings, things of this nature. It is a complete search.”
We have developed why this record leads us to a clear conviction that Mills was not given an opportunity to post collateral. We do not base that conclusion on Mill’s testimony, though we think the conclusion is entirely consistent with his testimony, for reasons explained in the footnote, indeed is fortified by his testimony.
Furthermore, it is not enough, as the District Judge seems to have supposed, for the Government to point to a bare possibility that Mills was given an opportunity to post collateral. As will be explained in the next section of the opinion, the police had a duty to advise defendant of his opportunity to post collateral for this minor offense, and at this suppression hearing the Government had the burden of showing that such opportunity was given.
Duty of Booking Officer To Advise Of Collateral Opportunity For Minor Offenses
When circumstances justify stationhouse detention, there is reason for some search of the person involved— putting aside, for present purposes, any attempt to grapple with the difficult questions of permissible occasion and extent of “inventory” searches. But it would be entirely unreasonable to hold that policemen have discretion to detain and therefore thoroughly search petty offenders like Mills, who may avoid stationhouse detention altogether by posting collateral. A huge proportion of the public is guilty of some sort of petty infraction almost every day — jaywalking, exceeding the 25-mph limit, using high beams, parking in a loading zone, among many others. Informing a person arrested for such a minor offense of his option to post collateral, and giving him an opportunity to exercise that option, is a necessary precondition to a thorough and complete search that is conducted only as an incident to the needs of sta-tionhouse detention.
Our conclusions concerning the obligation of police to give “notice and opportunity” to petty offenders of their option to post collateral are fortified by the fact that the stationhouse clerks who have the function of booking offenders {supra note 6) are also serving as acting clerks of court — formerly Court of General Sessions, now the Superior Court— during the hours when court is not in session. See 23 D.C.Code §§ 610, 1110.
If for some reason the police officer concludes that interests of the community require additional protection, established regulations and orders make clear that he cannot act solely on his own discretion. The Police Manual regulations provide ch. VIII, § 9:
The bond and collateral lists established by the Municipal Court for the District of Columbia shall be strictly complied with by members of the Force and no member shall accept or require a greater or lesser collateral than that specified in these lists.
The order signed by Chief Judge Smith of the Court of General Sessions, effective April 19,1965, provides:
Whenever it shall appear to the police officer commanding a precinct, division or squad of the Police Department that, by reason of the special facts or circumstances of a case in which an arrest has been made by an officer under his command, the collateral set herein is inadequate to protect the interests of the community in the premises, he shall communicate by telephone or otherwise with a judge of [The Court of General Sessions] advising the judge of the facts and circumstances of the case for the purpose of having the judge set bond or collateral in a higher amount. * * *
When a person is charged with a collateral-type petty offense, under which he rightfully has the opportunity to post collateral and avoid further detention, and there is no probable cause to believe he committed a more serious crime, the police may not engage in an inventory search of the offender, or an equivalent direction that he empty his pockets, and seek to support it on the ground of holding him in further confinement, unless at a minimum he was timely notified of his opportunity to post collateral (and thus avoid further detention) and refused or was unable to do so. Assuming that, in the context of a motion to suppress, the presumption of regularity puts a burden on the defendant to come forward with some evidence that such an opportunity was not afforded, that burden is met, and the presumption is overcome, when, as here, defendant establishes that he had on his person money enough to post the necessary collateral. That put it to the Government, if it were to sustain the search as incident to stationhouse confinement, to make a showing that it accorded the opportunity to post collateral. There was no such showing by the Government. Indeed, as already stated, the total record — at trial and on remand — convinces us that no such opportunity was accorded.
Other Precedents
While we know of no direct Federal circuit precedent, the views stated herein are in accord with opinions of other courts.
In California v. Mercurio, 10 Cal.App.3d 426, 88 Cal.Rptr. 750 (1970), a man arrested when he walked backward across a street against a “don’t walk” signal was taken to the police station, and was unable to produce satisfactory identification. He was required to undress, and a police search of his clothing disclosed a vial of marijuana. The court took account of the legislature’s intent to allow a person arrested for this offense to post bail “to avoid the indignity of jailing.” 10 Cal.App.3d at 431, 88 Cal.Rptr. at 752. Although the arrest of appellant was lawful, “the failure of the officers to take him before... a person accepting bail in accordance with schedule, deprived the subsequent jailhouse search of validity.” 10 Cal.App.3d at 432, 88 Cal.Rptr. at 753.
In Carpio v. Superior Court, County of Santa Barbara, 19 Cal.App.3d 790, 97 Cal.Rptr. 186 (1971), the offender was, inter alia, charged with speeding and driving on an expired temporary permit. A jailhouse search uncovered marijuana. The court, noting that the offenses charged would have entitled appellant to release on bail, held the contraband was unreasonably and illegally seized, stating:
It is admitted that there was no reason to assume that petitioner would not have been able to post the required bail bond had he been given the opportunity to do so.
19 Cal.App.3d at 793, 97 Cal.Rptr. at 188.
The Colorado Supreme Court in People v. Overlee, 483 P.2d 222 (Colo.Sup.Ct. En Banc 1971) held that the discovery of contraband during an inventory search was unlawful since the offender was eligible for release after his arrest for traffic violations upon posting $25 bond and signing a written promise to appear in court to answer the charges. The arresting officer, through an apparently good-faith mistake, required a $75 bond. “[I]f the officer had required only $25 bond — as he should have done— the defendant would have posted it and would have been immediately released; and there would have been no search.” 483 P.2d at 223. Accord, People v. Greenwood, 484 P.2d 1217 (Colo.Sup.Ct. En Banc, 1971).
Conclusion
We are not to be understood as inferring bad faith on the part of Officer Ivery. But even the best of good faith cannot justify an unconstitutional search. The officer’s order to appellant to empty his pockets was a stationhouse search which required a premise of stationhouse detention for its justification. When, as here, the arrest is for a minor offense for which the police must give defendant opportunity to post collateral, the defendant was detained notwithstanding he had funds sufficient to post collateral, and there is no showing that defendant was given opportunity to post collateral, any detention-based inventory justification is negatived, and the search must be held invalid. The evidence found as a result of that search was inadmissible.
Reversed and remanded.
. We assume, for present purposes, that the Government is correct in saying that the punishment — a fine of not more than $300 or imprisonment for not more than 90 days — prescribed by 40 D.C.Code § 301 (a) (2), (d) for the offense of operating a motor vehicle “without first having obtained an operator’s permit or a learner’s permit,” applies to someone who has obtained a learner’s permit but is not accompanied by a licensed driver as required.
. The significance of this is borne out by Preliminary Hearing Tr. 8; “Usually when a policeman is walking the motorist don’t stop. This [blowing the whistle] is more or less a test to see if he would stop.”
. 23 D.C.Code § 610(b) (Supp. I, 1968), amending 23 D.C.Code § 610 (1967). This section, as amended, was subsequently repealed as part of the 1970 re-codification of the Criminal Procedure Code. Act of July 29, 1970, Pub.L. No. 91-358, § 210(b) (6), 84 Stat. 604. The relevant statute now governing the applicable arrest procedures is 23 D.C. Code 581(a) (1) (B) (Supp. V, 1972).
. Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir. 1968) ; Taglavore v. United States, 291 F.2d 262 (9th Cir. 1961).
. “It is... FURTHER ORDERED by tlie Court en, bane that the District Court take evidence and make findings as to (1) Whether at the time of the defendant’s arrest it was the function of the stationhouse clerk, or some other police officer, under either regulation, written or oral instruction, or general practice, to advise the defendant that his was an offense for which collateral could be posted; (2) Whether this information was given to defendant; and (3) If so, why defendant failed to post collateral.” Order of May 27, 1971.
. The Government relies on this finding of the District Court:
7. Whether defendant was given an opportunity to post collateral remains mi-clear due to:
A. The inability of any of the station-house clerks or transporting officers on duty the night of the defendant’s arrest to recall the event that transpired [REM. 4-5],
B. The failure of the government, despite efforts made [REM. 4-71] to locate two other officers who were in the stationhouse that night [REM. 5],
C. The lack of any recollection as to this matter on the part of Mr. Craig Tatum who was arrested in conjunction with Mr. Mills that night [REM. 5], and
D. The death in the line of duty of the arresting officer, Willie C. Ivery, shortly after the trial in this case [REM. 4]. Officer Ivery testified at the trial in this case that he did not ask Mills whether or not he had sufficient money to post collateral for the offense of no D.C. operator’s permit [TRIAL 47; REM. 7-8],
. As stated in Judge Robb’s opinion for the division: “At the stationhouse, as part of the booking preedure, Officer Ivery directed Mills to produce the contents of his pockets.” Officer Ivery carried out, in this instance, the function of the station clerk to record arrests. The station clerk is also responsible for money received as collateral and property taken from prisoners. Manual of the Police Department (hereafter Police Manual), issued in 1948 as regulations approved by the Commissioners of the District of Columbia, ch. XVIII, sees. 3, 11.
. See Transcript, Pre-Trial Hearing, 37-8, where Ivery confirmed his testimony at the preliminary hearing:
Q. Now, after Mr. Mills and you and the other gentleman [Tatum] got to the station, what did you do then?
A. Well, I proceeded to write the gentleman a ticket. Not to detain him any longer since it [Tatum’s] was a type of case where he could pay the ticket then or take a ticket and pay in five days, 10 days, whichever he chose to do. This first order of business was to write the violation for him. Remember that testimony?
A. This was, as soon as I possibly could. He wasn’t detained very long before I wrote the ticket for the gentleman [Tatum],
. See Police Manual, ch. VI, sec. 3: “Before being placed in confinement, prisoners shall be thoroughly searched and money, jewelry, other articles of apparent material value, billfolds and contents, ties, belts, suspenders, and all weapons and other articles with which they might injure themselves or effect an escape, shall be taken from them.”
. At the remand hearing, Mills testified he knew about collateral. See Tr. 11-12:
Q: Did you know what collateral was?
A: Yes.
Q: How did you know what collateral was?
A: Well, when you are driving a car, like you usually know the basic rules and regulations, you know.
Q: So you knew before you went to the station house that night that you could have posted collateral for no D.C. permit?
A: Yes, I knew it.
Q : When you got to the station house and you found out that the police officers were going to detain you, did you ask them about the collateral system?
A: No, I did not.
Q: Why not?
A: They said they were going to detain me.
When the Government pursued the matter in detail to clear it up, it developed that Mills knew about collateral from previous incidents involving friends of his, where persons were given tickets on the street and permitted to post collateral at the precinct station. He also knew that Tatum had been allowed to post collateral and leave, because he loaned Tatum the necessary funds.
As already noted, Mills testified that he had been searched before being booked, and believed he was being booked for narcotics.
Mills’ closing testimony on remand reenforces that he was not told of the opportunity to post collateral.
Q: When you got
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_respond1_1_2
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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".
Ferrin C. HARMAN and Henry Clay, Plaintiffs-Appellants, v. DIVERSIFIED MEDICAL INVESTMENTS CORPORATION, a Colorado Corporation, et al., Defendants-Appellees.
No. 74-1551.
United States Court of Appeals, Tenth Circuit.
Oct. 31, 1975.
Rehearing Denied Dec. 8, 1975.
John B. Ogden, Oklahoma City, Okl., for plaintiffs-appellants.
Dan A. Rogers, Tulsa, Okl., for defendant-appellee John E. Schroyer.
Robert S. Baker, Oklahoma City, Okl., for defendants-appellees Diversified Medical Inv. Corp., Dr. Charles M. Farr, and Dr. Kenneth H. Bagwell.
Robert J. Emery, Oklahoma City, Okl., for defendants-appellees Chromalloy American Corp., Dr. William Friedman, Herbert Zlotnick, and James A. Mullins, a/k/a Jim Mullins.
Before HILL, HOLLOWAY and BARRETT, Circuit Judges.
HILL, Circuit Judge.
Ferrin Harman and Henry Clay (hereinafter referred to collectively as appellants) were the majority stockholders in, and the managing officers of, Perpetual Royalty Corporation (Perpetual), an Oklahoma corporation dealing in oil and gas royalties.
On or about April 17, 1970, Trail Mines, Inc. (Trail Mines), a, Colorado corporation, amended its Articles of Incorporation by changing its corporate name to Diversified Medical Investments Corporation (DMIC) and also underwent a recapitalization whereby its 15,000,000 outstanding shares of stock were reduced to 300,000 outstanding shares of stock.
Thereafter, on May 15, 1970, The Brayden Company, Inc. (Brayden), an Oklahoma corporation, was merged into DMIC. Through this merger the former stockholders of Brayden received an aggregate sum of 5,000,000 shares of DMIC stock in exchange for all of Bray-den’s corporate assets.
As a result of this activity, DMIC had 300,000 shares of Regulation A stock that was freely tradable. The balance of its stock was not subject to Regulation A exemption and was therefore restricted.
Appellees Charles Farr, Jim Mullins, Kenneth Bagwell, William Friedman and Herbert Zlotnick were directors of DMIC. Appellee John Schroyer held the power of attorney for the majority of Trail Mines’ stockholders.
Chromalloy American Corporation (Chromalloy) did, in December, 1970, enter into a consulting agreement with DMIC. This agreement, however, was rescinded prior to performance thereunder.
David Dooley is a petroleum engineer. He was, at one time, employed by Perpetual and later was employed by Bray-den. When Brayden merged into DMIC, he became an officer and director of DMIC. Dooley brought appellants and DMIC together, for the purpose of selling Perpetual’s assets to DMIC. Dooley made various representations to both DMIC and appellants as to the value of their respective bargains, and appellants and DMIC relied upon these assertions. The negotiations eventually resulted in the sale of Perpetual’s stock and assets to DMIC in exchange for 240,000 shares of DMIC stock. Of this stock, appellants agreed to pay Dooley 40,000 shares if he would induce DMIC to purchase Perpetual’s assets. This stock, however, was assigned to Dooley’s secretary.
Appellants sold a portion of the stock they received from DMIC. All the stock they received was restricted but apparently did not bear a restrictive legend. Upon learning of sales by appellants of its restricted stock, DMIC placed stop orders on future sales.
On November 19, 1971, appellants and Perpetual filed a complaint in the United States District Court for the Western District of Oklahoma against, inter alia, DMIC and Chromalloy. The complaint claimed jurisdiction under 15 U.S.C. § 77a et seq., and alleged, inter alia, that DMIC and others had represented that the stock to be received under the agreement of merger was to be “free trading” and “fully . marketable” stock which could be sold on the market without restrictions and would enjoy a specific range of values. The appellees cross-claimed that as a result of various misrepresentations by the appellants there had been no meeting of the minds in this regard. Perpetual was ordered dismissed by the court following an agreement to that effect by the parties. Thereafter, the trial court granted summary judgment on behalf of DMIC, Farr and Bagwell and dismissed the action as to Chromalloy, Schroyer, Zlotnick, Friedman, Mullins and Dooley. Finding that genuine issues of material fact existed, we reversed. See Harman v. Diversified Medical Invs. Corp., 488 F.2d 111 (10th Cir. 1973).
Following remand, a brief trial to the court was held; the trial court admitted into evidence all depositions, interrogatories and answers, and exhibits, subject to relevancy and competency objections. One witness, appellant Clay, gave some testimony. A stipulation was entered that appellants’ counsel could find someone in Oklahoma County who would testify that the proxies — voted to approve the April 17, 1970, amendments to Trail Mines’ Articles — were all signed by the same person.
The trial court entered findings of fact and conclusions of law. We set forth the critical ones as follows:
Plaintiffs and DMIC relied upon representations made by David Dooley as to the value of their respective bargains. The assertions made as to the value of Perpetual’s assets were grossly exaggerated. DMIC relied upon those assertions. Both plaintiffs and defendants relied upon Dooley’s representations to each as to the value of their respective bargain (sic). Both plaintiffs and defendants were misled. [Finding of Fact]
Both plaintiffs and defendant DMIC made independent value judgments. Each relied on mistakes as to facts which formed the essential elements of the contract. [Finding of Fact]
Plaintiffs and DMIC struck a bargain. Neither received that which was anticipated. There was not a meeting of the minds of the parties as to the material elements of the transaction. [Conclusion of Law]
The court rescinded the transaction between appellants and DMIC. DMIC was given 30 days to file a claim for the unsurrendered stock; appellants were given ten days following the claim’s filing to respond. DMIC was ordered to deliver to appellants the assets of Perpetual which were in their possession. DMIC was also ordered to cooperate and execute the necessary instruments prepared by appellants’ counsel which would allow the two men to dispose of Perpetual’s mineral interests, if the two men elected to do that. The claim filed by DMIC represents that 124,200 of the 240,000 shares of DMIC stock had been deposited with the court; the claim valued the remaining 115,800 shares at $5,558.40.
On appeal, appellants’ principal argument is that the trial court erred in ordering a rescission because the parties could not be placed in the same position they were in when they entered into the transaction. The specific allegations of this argument include: (1) appellants cannot return all the stock because some of it is beyond their control; (2) it is impossible to give title to the Perpetual assets back to the corporation because Perpetual has ceased to exist; (3) DMIC is insolvent and the judgments which have been rendered against DMIC have created liens on the Perpetual assets; (4) if the property is transferred to appellants individually, it would be necessary that it be transferred by DMIC which cannot legally transfer the property; and (5) Bache & Company sold some stock for appellants and was forced to redeem it because of a stop-order issued by DMIC’s president; Bache & Company sued Clay, and received a $13,000 judgment (“or thereabouts”); to rescind, DMIC should be required to pay that judgment.
The general rule is that a person seeking rescission must restore the other person as far as possible to the situation he occupied before the transaction in issue occurred. Berland’s Inc. v. Northside Village Shopping Center, 447 P.2d 768 (Okl.1968); 12 C.J.S. Cancellation of Instruments § 44 (1938); 13 Am. Jur.2d Cancellation of Instruments § 37 (1964). Appellants seek the literal application of this rule by arguing the property in specie must be returnable or rescission cannot be granted. Although appellants are to receive the property in specie they exchanged, they are concerned that DMIC will not be receiving all of its stock. DMIC has not objected to the change in form: stock into money. The general rule cited above seeks to avoid one party’s retaining benefits while the other party returns the property in its possession. Courts have recognized that the restoration need not be exact for rescission to be proper. 12 C.J.S., supra.
In a rescission case involving oil leases, the Oklahoma Supreme Court, noting that wells had been drilled since the transaction and leases could not be returned to the former owner, stated:
Therefore, the very nature of the properties involved rendered it impossible for the plaintiff to be restored to its former condition. In addition, the nature of the acts of fraud committed by the plaintiff contributed to the inability of the defendants to restore the status quo. ... To impose an impossible condition such as this on the defendants as a condition precedent to rescission would be grossly unfair and inequitable and would have the effect of reducing this equitable remedy to an arithmetic formula which would drastically limit its availability. All that can reasonably or in justice be required in cases such as this is that the person seeking rescission reimburse the other party for all benefits they may have received.
Oklahoma Co. v. O’Neil, 440 P.2d 978 (Okl.1968).
We see nothing unjust or inequitable in allowing rescission in this instance although the property in its original form will not be exchanged.
Appellants’ second attack on this rescission is that the status quo will not be achieved because title to the assets cannot be placed in Perpetual as that company no longer exists. Perpetual apparently was merged into DMIC, although the trial court did not make a specific finding as to merger or mere acquisition of Perpetual. If merger occurred, as we assume for purposes of this appeal, Perpetual no longer exists and title could not be returned to it. Colo.Rev.Stat.Ann. § 7-25-105 (1973); Okl.Stat.Ann., Tit. 18, § 1.167 (1953) (the appropriate statutes of the two states where the companies involved in the merger were incorporated). There is nothing inherently inequitable in simply returning to appellants, in their individual capacities, the assets owned by Perpetual. The appellants have received the real value they exchanged and form should not be regarded over substance in this equitable matter. Ionic Petroleum, Ltd. v. Third Fin. Corp., 411 P.2d 492 (Okl.1966) (rescission is controlled by equitable principles); 27 Am.Jur.2d Equity § 127 (1966).
Appellants also contend DMIC is insolvent and liens on behalf of DMIC’s creditors have attached to the Perpetual assets. The only support for this contention is the same conclusory argument in appellants’ brief in support of their new trial motion. Because there is no factual basis in the record for that contention and no supporting legal authorities, we deem it inappropriate for review. Appellants’ fourth contention, that DMIC cannot legally transfer the property to appellants, also is not supported factually and is not reviewable.
To understand appellants’ fifth argument against the propriety of rescission, we recite the relevant facts, as appellant Clay testified at trial. Clay sold approximately 6,100 shares of DMIC stock to Bache & Company. He received an average of $2.76 per share. Of those shares, 4,700 were sold but could not be transferred due to the stop orders which DMIC had placed with the transfer agent of the securities. Bache had to go into the market and buy up shares to satisfy the purchasers of the nontransferrable shares. Bache was awarded a judgment against Clay for “13,000 and something.” Clay agreed in his testimony that he had realized $12 — 15,000 on the transaction. We cannot agree with appellants that this judgment must be paid by DMIC to achieve the original status quo. The proof adduced would not indicate that Clay has anything to complain about concerning his position resulting from his disposal of the stock.
Appellants also argued the rescission was not proper because it was not sought promptly. This issue was not presented in any manner to the trial court and is not appropriate for appellate review. E. g., Eureka-Carlisle Co. v. Rottman, 398 F.2d 1015 (10th Cir. 1968).
Appellants contend rescission is not authorized in this situation under Oklahoma law, the law the parties have both applied to consideration of the counter-claim. Okl.Stat.Ann., Tit. 15, § 233 (1966), provides that a party to a contract may rescind when his consent was given by mistake. The Oklahoma Supreme Court has recognized the power of a court of equity to cancel a contract for mutual mistake of fact. Watkins v. Grady County Soil & Water Conservation Dist., 438 P.2d 491 (Okl.1968). The trial court concluded that a meeting of the minds had not occurred as to material elements of the transaction and that there was a bilateral mistake of fact as to the material elements of the transaction. We believe under these circumstances Oklahoma courts and most other courts would allow rescission. 12 C.J.S. Cancellation of Instruments § 27 (1938).
Appellants argue that the evidence presented at the trial compels a determination that forged proxies were voted at a Trail Mines stockholders’ meeting held on March 13, 1970, when the amendments to its Articles were approved (appellants say half the proxies were forged). These amendments changed the corporation’s name to DMIC, reduced the outstanding capital stock to 300,000 shares, and authorized 15,000,000 shares. The minutes of that meeting also reflect approval of the plan of merger between Trail Mines and Bray-den. At trial, it was stipulated that appellants’ counsel would be able to find someone in Oklahoma County who would testify the proxies were all signed by the same person. As the trial court correctly informed counsel the stipulation was not made that such testimony was true.
We assume for purposes of this appeal that forgeries were used to secure many proxies. Appellants contend that these forgeries invalidated the issuance of DMIC stock and made the stock issued to Harman and Clay void. The trial court did not make findings concerning this matter. The trial court did enter a conclusion of law respecting the alleged major culprit in the forgeries, appellee John Schroyer. That conclusion is as follows:
Plaintiffs have never owned any stock in Trail Mines, Inc.; therefore, have no standing to complain of the actions of Schroyer pertaining to the merger of Trail Mines, Inc. and Brayden, Inc.
We agree with the trial court that these alleged forgeries are not the concern of these appellants. The court’s order rescinding the sale certainly gives relief to these parties from any defect in the stock’s issuance.
In relation to the alleged forgeries of proxies, appellants contend they are purchasers and sellers of stock within the securities laws, which appellants claim have been violated; appellee Schroyer argues appellants do not fit within the definition of purchasers and sellers in relation to possible forged proxies for the voting of Trail Mines’ stock. Although there are many reasons which could be marshalled to support the result — giving judgment to Schroyer against appellants — we rely on the lack of a causal connection between Schroyer’s alleged forgery activities and the alleged deceptive exchange of DMIC stock for the Perpetual stock. See Vincent v. Moench, 473 F.2d 430 (10th Cir. 1973).
We have considered appellants’ other objections to the judgment below, including the argument concerning the nonlegend restriction of the stock. We find those arguments to be without merit especially in light of the rescissional remedy granted here. The trial court found that appellants and DMIC had relied upon Dooley’s representations as to the value of their respective bargains and that appellants and DMIC had been misled. The trial court sought to do equity in a complicated situation where all parties claimed to have been misled as to material facts. Rescission was properly granted as the parties have been substantially returned to the status quo.
Affirmed.
. Of Perpetual’s 80,000 shares of stock, appellants each owned 39,900. The remaining 200 shares were owned in equal amounts by two persons not parties to the instant case.
. While working for Perpetual, one of Dooley’s assigned tasks had been to attempt to sell Perpetual.
. By an amended complaint, appellants alleged jurisdiction was under 28 U.S.C. § 1337, 15 U.S.C. §§ 771, 77p, 77v and 78aa. Other sections of the securities laws were alleged as conferring “jurisdiction” for the recovering of damages and jurisdiction over the persons via extraterritorial service of process.
. There is evidence that DMIC merely acquired Perpetual; however, Articles of Merger were filed with the appropriate authorities.
. The trial court did not order the merger set aside as appellees requested in their counterclaim (we do not infer that such action would have been possible); the court also made no disposition of the Perpetual stock exchanged by appellants for the DMIC stock. This latter failure may have recognized the fact that Perpetual had ceased to exist. Appellants, however have not'complained that their stock has not been returned to them or that they have not been returned the corporation they owned.
. One exhibit indicated Clay received $13,-052.22 net on his sales of stock to Bache.
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_appbus
|
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.
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.
WAHLGREN et al. v. BAUSCH & LOMB OPTICAL CO. et al.
No. 5015.
Circuit Court of Appeals, Seventh Circuit.
Jan. 23, 1934.
Benj. F. J. Odell, Albert Sabath, and Charles Hudson, all of Chicago, Ill., for appellants.
Silas H. Strawn, John D. Black, and George B. Christensen, all of Chicago, Ill., for appellees.
Before ALSCHULER, EVANS, and FITZHENRY, Circuit Judges.
EVANS, Circuit Judge
(after stating the facts as above).
The assignments of error may be considered under three headings, (a) Does the contract between Roy Wahlgren and Bausch & Lomb Company as modified prevent the former from engaging in the employment or business of manufacturing and selling optical instruments for a period of five years? (b) Does the evidence show that the other appellants knowingly joined with Roy Wahl-gren in building up a business in violation of said contract of Wahlgren and appellee, Banseh & Lomb Company, or in conspiring with Roy Wahlgren to injure appellees’ business? (e) Does the evidence show that Oscar G. Wahlgren participated with his brother Roy in breaehing said contract or in conspiring to injure appellees’ business?
Essential parts of the contracts are set forth in the margin.
In 1925, one Elwood Biggs, founder of the Biggs Company, sold his interest in said company for $1,667,500 to Bauseh & Lomb Company; said interest to be paid for over a period of ten months. The contract of sale provided that during the .said ten months’ period appellant Boy Wahlgren should be given control of the company. About the same time Wahlgren entered into a separate contract with Bauseh & Lomb Company to purchase from it a large block of the stock which had been acquired from Biggs. He executed his twenty year interest bearing note for $850,000, which covered the purchase price of the stock, and which was to be paid from the dividends paid on the stock and. $20,000 annually from his salary. Boy Wahlgren thereupon became president and general manager of the Biggs Optical Company, and Kis salary was $35,000 per year. During the period covered by this contract, he became involved in marital troubles, and his conduct and personal habits were sueh as to prevent the continuance of the contract along the lines originally planned. After repeated efforts had been made to induce his reformation, Boy Wahlgren tendered his resignation at the request of the Biggs Company, which resignation was accepted by the Board, and he was removed as president and general manager of the company. Before this, however, the original contract was modified, but not in a manner which necessitates a hffie verba statement of the entire modification. Wahlgren contends that the modifi-catiofi released him from the restrictive covenant of the original agreement. Subdivision 3, paragraph 5, provided:
“(3) That in case of the termination of his employment by the Biggs Optical Company, the said Wahlgren shall not, and hereby covenants and agrees that he will not, within five (5) years from the date of the termination of such employment, enter the employ of or become or be interested in any corporation, partnership, concern or business engaged in the manufacture or sale of optical instruments or apparatus anywher6 within the United States of America west of a line drawn due North and South through the City of Detroit, Michigan.”
Appellees contend this proviso governs, while appellant Boy Wahlgren argues thal it does not.
After he severed his relations with ap-pellees, Wahlgren immediately engaged in the business of manufacturing and selling optical goods and shortly thereafter organized the Wahlgren Optical Company and induced employees of the Biggs Optical Company to leave their emplojonent and join him in his new venture. Appellees assert that in so doing he violated the provisions of the aforesaid agreement and that he also originated a conspiracy, in which his brother Oscar and the other appellants participated,' to injure and destroy by unfair means the optical business of Biggs Optical Company This charge, the appellants also denied.
There can be no doubt as to the parties’ right to legally contract so as to exclude Boy Wahlgren from engaging in the optical business for a period of five years. Broxham v. Borden’s Farm Products Co. of Ill. (C. C. A.) 53 F.(2d) 946; Wark v. Ervin Press Corporation (C. C. A.) 48 F.(2d) 152. The territory covered by the contract was restrict-, ed. The period was limited to five years. The relations of the parties and their situation made the agreement reasonable.
Appellants contend, however, that because the modification or second contract provided that the
“said agreement of February 21, 1925, together with any and all modifications thereof, shall be and be deemed to be terminated and cancelled in all particulars and for all purposes, and the said Wahlgren shall be relieved and released from all obligations expressed in said agreement or arising therefrom, * * * ”
Wahlgren was relieved of the negative employment clause of the original agreement, or, in other words, the original agreement with its restrictive employment covenants was terminated.
It is appellants’ contention that subdivision 3, paragraph 5, applies only in case of the termination of Wahlgren’s employment under and by virtue of paragraph 5 of said modified agreement. We can not agree with this conclusion. The fair construction of the second contract is that it canceled the agreement of February 21,1925, subject, however, to several exceptions, one of which is found in subdivision 3 of paragraph 5.
While we are not inclined to extend any restrictive employment covenant beyond what is clearly provided by the contract of the parties, we axe unable (once such agreement is clearly established) to construe an amendment thereto in any way different from any other contract.
A fair construction of the February, 1930, contract including paragraphs 4 and 5, and particularly subdivisions 1 and 3 of paragraph 5, leads to this conclusion and to none other. Wahlgren’s conduct and failure to make payments on his note had been so disappointing that the old contract had to be modified. Hope of Wahlgren’s reformation was still entertained, however, and paragraphs 4 and 5 were drawn on the basis of this hope. In ease the original contract was canceled, it was still the hope and plan of the parties to retain Wahlgren as general manager, but on a different salary basis. A new agreement was to ho executed which was to contain negative employment covenants such as were provided for in subdivision 1 of' paragraph 5. The contingency thus provided for never arose for Wahlgren’s conduct became such as to cause him to tender his resignation. The resignation was not accepted, „but some months later the Riggs Company acted, and the following resolution was passed:
at* • • tHat because of his personal conduct and habits which have been detrimental to the business of the corporation and because of his unauthorized withdrawals of money from the corporation, the said Roy M. Wahlgren be, and he is, hereby removed as president and general manager of this corporation.’ ”
It was this action which invoked subdivision 3 which covered just such a situation. The negative employment covenants therein contained became effective, and Wahl-gren for five years from said date was not permitted to enter the employ or become interested in any corporation, partnership, concern, or business engaging in the manufacture or sale of optical instruments within designated territorial lines.
Our examination of the testimony convinces us that the master was amply justified in finding Wahlgren, in open and flagrant violation of the agreement binding upon him, engaged in the manufacture and sale of optical instruments in the territory which he, by his agreement, had excluded from the field of his activity.
As to appellants, other than Oscar Wahl-gren, the testimony established with equal clarity that they knowingly joined Roy Wahlgren in his unlawful enterprise and in violation of his contract with Bausch & Lomb Company. They were evidently given inducements which caused them to leave their old company and to resort to unfair trade methods which could not have been justified, even though Wahlgren had not agreed to remain out of the optical manufacturing field. The record discloses a situation in which neither contract obligation nor legitimate trade methods were respected.
As to Oscar Wahlgren’s participation in his brother’s unlawful enterprise, it is argued that the evidence is not sufficient to support the findings made by the master and sustained by the District Court. Unfortunately, the testimony is not printed. The typewritten copy fills three large volumes „o£ approximately 600 pages each and includes the testimony of many witnesses. No less than nine witnesses involved Oscar in the activities in one way or another. He did not see fit to testify in denial or explanation of any of the testimony given against him, from which we are justified in assuming that any explanation which he could have offered would have been worse than the unexplained testimony and the inferences deducible therefrom. Mammoth Oil Company v. United States, 275 U. S. 13, 52, 48 S. Ct. 1, 72 L. Ed. 137.
Oscar Wahlgren contends that he was not given an opportunity to testify before the master. The record before us shows that the District Court gave him such opportunity and fixed the time at which he might appear and give his testimony before such trial judge in open court. He failed to avail himself of this opportunity. It is now argued that this showing made before the District Court was not properly incorporated in the certificate of evidence and is not properly before us. We think otherwise.
No satisfactory explanation of this appellant’s conduct and of his participation in the enterprise can be made on the hypothesis of his innocence. He was an attorney at law, practicing in Chicago. The year 1930, when the new enterprise was launched, was not a particularly favorable year for an attorney to embark in the optical business in Chicago. The depression was deep and growing worse. Prices were falling. Busi-> ness was bad. Yet, in the face of these facts', we find this attorney organizing a corporation for the conduct of a business with which he was not familiar. He knew his brother was barred from lawfully participating in such a business in Chicago. Take the testimony of the witness Bradley who stated that he called on Oscar Wahlgren one ¡evening and was told by Oscar that “he had been down East with Roy Wahlgren and that * * * Roy Wahlgren’s name was simply typical of good things in the optical business, and that he thought he would capitalize on it and that Roy had recommended that I was the man to head up the organization. * * *»
He further stated that Oscar Wahlgren said he would take care of the organization of the corporation; that the first time he knew he was going to be president of the Wahlgren Optical Company was the first time he talked to Oscar Wahlgren; that he discussed the question of the location of the new offices with only Oscar and Roy Wahl-gren and told them they should be located in the Mailers Building; that it must .have been around December 1, 1930, when the location of the new offices was definitely determined; that Oscar and Roy Wahlgren and he decided that; that he didn’t know when the lease was signed, but he thought Oscar signed it, as he was acting as president of the company, and he (Bradley) was not an officer until after he left Riggs; and that he thought it was Oscar who had told the building officials and plumbers to put the place in shape. In respect to his signing the lease at that time, he remembered Oscar called him on the phone and he went to Roy’s office and both Oscar and Roy were'there. Roy said that the organization of the corporation out in Omaha had not been completed and that as a matter of form he wanted him to sign the lease, and as soon as the corporation was formed out there, it would be changed over.
A great deal more testimony of a similar nature was received showing rather conclusively that Oscar was as active in the new venture as was his brother. Standing isolated and apart from the rest of the testimony, many of the acts of Oscar Wahlgren might be explained on the theory that he was acting as attorney, who, as such, drew leases, incorporated companies, and interviewed the interested parties. But his activities far exceeded those of an attorney drawing legal documents for a client. His actions and his words both indicate he was a participant, if not the originator, of the scheme to avoid the provisions of the agreement which excluded.his brother Roy from participation in the optical field for five years. One may not use his license to practice law as a shield to protect himself from the consequences of his participation in an unlawful or illegal conspiracy. Holt v. United States (C. C. A.) 45 F.(2d) 392. We conclude the master was justified in finding Oscar was one of the eoeonspirators in the unlawful enterprise which was conceived and executed by his brother in violation of that gentleman’s written contract.
Other questions raised by appellants have been duly considered, but none of them merits separate treatment.
The decree is affirmed.
(Contract, February 21, 1925.) “Si-yonth: It is mutually understood that during the performance of this agreement, the relations hotwo.cn the parties hereto and the Riggs Optical Company shall, so far as is within tho, control of the parties hereto, ho as follows: (1) said Wahlgren shall be and become tho General Manager of said Riggs Optical Company and shall have an annual salary of Thirty-five thousand dollars ($35,000) per year; * * *
“-Eighth: That said Wahlgren shall devote all of his time and attention to tho business of the said Riggs Optical Company, and shall not he or become engaged in any competing company or industry during tho term prescribed for the performance of this agreement, except with the written consent of tho Bausch & Lomb Optical Company. If, for any reason, his employment or relations with the Riggs Optical Company shall be terminated during said term, then he shall not become interested, either d> • roctiy or indirectly, in any competing concern or industry at any place in the. United States west of a line drawn duo north and south through the City of Detroit, Michigan.”
(Contract, February 13, 1930.) “Third; If, during tho remainder of the calendar year 1930, the said Wahlgren shall so conduct himself that his personal habits and mode, of living are satisfactory to t.he Company and his handling of the business and affairs of the Riggs Optical Company are satisfactory to and approved by the Company, it agrees that it will:
** ********
*‘(3) permit the said Wahlgren to carry on under the provisions of said agreement of February 21, 1925, as heretofore modified * * and as modified by * * * this agreement, so long as he shall * * * perform all the provision}* of said contract of February 23, 1925, as modified, and all the provisions of this contract upon his part to be performed.
“Fourth: If, however, at any time prior to January 1, 1931 the personal habits, conduct or mode of living of the said Wahlgren, or his management of tho business and affairs of the Riggs Optical Company a,re not satisfactory to the Company (as to which the Company and its Board of Directors shall be the sole judges * * *) then and in that event, the Company may elect to terminate and cancel tho said agreement of February 21, 1925, by giving to the said Wahlgren written notice of its election so to do; * * * whereupon, the said agreement of February 21, 1925, together with any and all modifications thereof, shall be and be deemed to be terminated and cancelled in all particulars and for all purposes, and the said Wahlgren shall be relieved and released from all obligations expressed in said agreement or arising therefrom, provided however, that the Company shall * * * repay to the said Wahlgren all sums of money paid by him to the Company under the said agreement and shall return to him all shares of stock of the Riggs Optical Company then held by the Company as collateral security to his indebtedness, excepting only the 5808 shares which tho Company has, by the terms of said agreement, agreed to sell to the said Wahlgren.
“Fifth: In ease tho said contract of February 21, 1925 be terminated and cancelled as hereinbefore provided, it is understood and agreed:
“(1) That the said Wahlgren may continue as General Manager of the Riggs Optical Company for such term and at such salary as may be agreed upon by the Board of Directors of the Riggs Optical Company and the said Wahlgren, and a contract shall be entered into by the said Riggs Optical Company and the said Wahlgren providing for the term of his employment as General Manager, the salary to be paid to him, that he shall devote his entire time, attention and best efforts to the business of the Riggs Optical Company, that he shall not be or become engaged in any competing company or industry during the term of such employment, and that for a period of five (5) years after the termination of such employment he shall not become or be interested, either directly or indirectly, in any corporation, partnership, concern or business competing with the said Riggs Optical Company. ******* *•
“(3)' That in case of the termination of his employment by the Riggs Optical Company, the said Wahlgren shall not, and hereby covenants and agrees that he will not, within five (5) years from the date of the termination of such employment, enter the employ of or become or be interested in any corporation, partnership, concern or business engaged in (the manufacture or sale of optical instruments or apparatus anywhere within the United States of America west of a line drawn due North and South through the City of Detroit, Michigan."
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_respond2_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
CHASE RESORTS, INC., et al., Appellants, v. JOHNS-MANVILLE CORP., etc., et al., Appellees.
No. 79-1823.
United States Court of Appeals, Eighth Circuit.
Submitted April 16, 1980.
Decided May 1, 1980.
Dempster K. Holland, Thomas, Busse, Goodwin, Cullen, Clooney & Gibbons, St. Louis, Mo., for appellants.
Eugene K. Buckley, Evans & Dixon, St. Louis, Mo. (argued), and Carl D. Kraft, St. Louis, Mo., on brief, for appellees.
Before HEANEY and ARNOLD, Circuit Judges, and SACHS, District Judge.
The Hon. Howard F. Sachs, United States District Judge for the Western District of Missouri, sitting by designation.
PER CURIAM.
Chase Resorts, Inc., and Four Seasons Lakesites, Inc., brought this action against Johns-Manville Corporation and Johns-Man-ville Sales Corporation alleging breach of warranty and fraud in the sale of an automatic watering system for a golf course. The case was tried to the Court, the Hon. H. Kenneth Wangelin, Chief Judge, presiding. On June 29, 1979, Judge Wangelin made extensive findings of fact and conclusions of law favorable to defendants. The opinion is reported at 476 F.Supp. 633 (E.D. Mo.1979). Judgment was entered accordingly.
We affirm on the basis of the District Court’s opinion. The Court found that Johns-Manville had not breached implied or express warranties and had not made fraudulent representations. These findings are supported by substantial evidence and are not clearly erroneous. See 8th Cir.R. 14.
Affirmed.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
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songer_casetyp1_6-3
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "labor relations".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 307, PLUMBERS, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPE FITTING INDUSTRY OF the UNITED STATES AND CANADA (AFL-CIO), et al., Respondents.
No. 71-1660.
United States Court of Appeals, Seventh Circuit.
Argued June 2, 1972.
Decided Aug. 24, 1972.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert A. Giannasi, Peter G. Nash, Gen. Counsel, Thomas E. Silfen, Attys., N. L. R. B., Washington, D. C., for petitioner.
Bernard M. Mamet, Chicago, 111., for respondent.
Before SWYGERT, Chief Judge, and CUMMINGS and SPRECHER, Circuit Judges.
SWYGERT, Chief Judge.
This is an application by the National Labor Relations Board for enforcement of its order directed against Local 307, Plumbers, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (hereinafter, “Plumbers”); Local 697, International Brotherhood of Electrical Workers (hereinafter, “Electrical Workers”) ; and Northwestern Indiana Building and Construction Trades Council, AFL-CIO (hereinafter, “Council”). The Board’s Decision and Order were issued on December 31, 1970 and are reported at 187 N.L.R.B. No. 94 (1971).
The trial examiner found that respondent union violated section 8(b) (4) (i) (B) and 8(b) (4) (ii) (B) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4) (i)(B) and (ii)(B), by picketing for the proscribed object of forcing a neutral general contractor to cease doing business with the subcontractor with whom respondents had a labor dispute. The Board affirmed the trial examiner and adopted his findings of fact and conclusions of law, one Board member dissenting.
The facts which follow are those found by the trial examiner and are essentially undisputed. For several years prior to 1969, the Plumbers had been involved in a continuing labor dispute with Meyer Plumbing, Inc. (hereinafter, “Meyer”) concerning Meyer’s failure to employ union members and pay the prevailing wage in the area. On September 26, 1969 neutral general contractor Vail Rubber Products Corporation (hereinafter, “Vail”) engaged Meyer as a subcontractor for the installation of plumbing fixtures at a planned warehouse facility. A few days later, Vail subcontracted the concrete flooring work to Hobbs Concrete Construction Co., Inc. (hereinafter, “Hobbs”) and the electrical work to A & W Electrical Service, Inc. (hereinafter, “A & W”). The plumbing and concrete work began at the jobsite around October 14, 1969.
On or about October 21 Plumbers’ business agent George McCarthy noticed a Meyer truck at the jobsite while he was checking a unionized construction project across the street. McCarthy immediately called the Plumbers’ attorney to find out if could put up a picket line protesting Meyer’s wages and working conditions.
The following day, Sam Spitale, president of the Council (a multi-union group including both the Plumbers and Eleetrical Workers) called Vail- president William Boyd and asked who his subcontractors were. When Boyd told him, he remarked that Hobbs and A & W were “fair” contractors but that Meyer was not. Spitale explained that a “fair” contractor was someone who was “fair with us” and who “paid the prevailing wages established in the area,” whereas Meyer hired “foreigners” and did not pay them more than $4.00 an hour. Spitale offered to send Boyd a list of the “fair” plumbers and of the “fair” contractors for jobs which had not yet been subcontracted; Boyd expressed no objection. Spitale then mentioned that there would be a meeting of the Council that evening and that the matter of Boyd’s plumbing subcontractor was sure to come up.
The following day, October 23, the Plumbers began picketing the jobsite with signs which read as follows:
Meyer Plumbing — Inc. ■ — ■
Fails to Meet Prevailing Wages and Conditions This Notice
is addressed only' to the Public. It is not addressed to any employers or employees, nor is anyone asked to cease doing business with anyone. Please read handbill which spells out purposes of patrolling.
PLUMBERS
Union 307
AFL-CIO
Boyd visited the jobsite that afternoon and observed the pickets. He then spoke to Jim Hobbs, his concrete subcontractor, who informed him that union business agents had visited that day and that Hobbs would have to stop its concrete work as soon as its men finished unloading a truck at the site.
Later that afternoon, Spitale called Boyd and told him that the matter of his plumbing subcontractor had come up at the Council meeting and “the men were very angry.” Boyd replied that that was evident from the presence of the pickets. Spitale said he would have Plumbers’ business agent McCarthy give Boyd a list of “fair plumbers.” When McCarthy called the following day with his list of “fair plumbers,” Boyd asked about four other plumbing subcontractors from whom he had received bids, and McCarthy told him that they were all “fair.” Boyd then told McCarthy that their bids had been two or two and one-half times higher than Meyer’s bid and asked McCarthy what he meant by a “fair” plumber. McCarthy explained that he meant “fair with us,” but agreed that under the circumstances there was no reason to send the list. The conversation thus ended, the picketing continued and no more work was done by Hobbs or A & W.
On November 5 Boyd went to the Electrical Workers Hall for the meeting with Spitale, McCarthy, and Harold Hagberg, business manager of the Electrical Workers. Boyd explained his warehouse project, mentioning that he was new at general contracting, and then referred to the Meyer plumbing subcontract and the problems caused by the picketing. Spitale told Boyd that members of the unions represented at the meeting would not work with Meyer plumbers because he did not pay the prevailing wage and because his plumbers did not have the skill acquired by men who had completed the Plumbers’ apprentice course. Boyd replied that he should have been told when he was soliciting bids in June that there were certain subcontractors with whom the employees of other subcontractors would not work, so that he could have made his choice with that in mind. Boyd then asked “if Meyer was not on the job, would there be a picket?” McCarthy replied that if Meyer were not on the job there would be no reason for picketing. After some further discussion to the effect that" prevailing wages were union wages and that Meyer did not pay them, Boyd asked if the pickets would be removed if Meyer paid the prevailing wage. McCarthy replied that they would be removed if such were proven to him.
Hagberg then asked Boyd if he would be willing to cancel the Meyer contract and give the balance of that work to a “fair” plumber. Boyd replied that that was not a “fair” question and that there must be some other alternative. Hag-berg asked McCarthy if he knew of any other solution, and McCarthy replied that “I can’t think of any other solution other than to cancel the contract with Meyer and place the balance of it with a, fair plumber.”
Spitale asked whether Boyd would object to placing the remaining subcontracts with “members of the Building Trades,” to which Boyd replied that he would not hesitate to do so if the bids were competitive. The union representatives then held a private caucus, after which Spitale reported to Boyd. The testimony is contradictory as to the nature of this discussion. Spitale testified that he said that the way to remove the pickets was to get proof that Meyer was paying the prevailing wage. Boyd testified that he was told that the only solution was to cancel the Meyer contract and give the balance of the work to a “fair” plumber. Boyd replied that he did not think that to be a fair solution, any more than it would be fair to cancel all the contracts with union subcontractors and give the balance to nonunion subcontractors. McCarthy then showed Boyd a list of the “fair” plumbers, and Boyd indicated that some of them had bid.
At this point McCarthy and Hagberg had to leave, so Spitale suggested that Boyd should “sleep on it” for a few days. Boyd replied that McCarthy should sleep on it and perhaps Spitale could prevail on him to remove the pickets. When Spitale called Boyd a few days later, Boyd said that no progress had been made and that he had gone to see the National Labor Relations Board.
On December 9 after the General Counsel of the Board was denied an injunction by the United States District Court for the Northern District of Indiana against the respondents’ picketing, Boyd notified the respondents that Meyer’s contract had been cancelled. The picket line was immediately removed by the Plumbers, and the work was subcontracted to another plumber a few weeks later.
Section 8(b)(4)(B) of the National Labor Relations Act makes it an unfair labor practice for a union or its agents:
(i) . . .to induce or encourage any individual employed by any person ... to engage in, a strike . . . ; or
(ii) to threaten, coerce, or restrain any person . . . where in either case an object thereof is—
* -X -X- * -X X
(B) forcing or requiring any person . to cease doing business with any other person . . .; Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any . . . primary picketing.
These provisions reflect “the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own.” NLRB v. Denver Bldg. and Trades Council, 341 U.S. 675, 692, 71 S. Ct. 943, 953, 95 L.Ed. 1284 (1951). The purpose of section 8(b)(4)(B) is explained in NLRB v. Local 825, Int’l Union of Operating Eng’rs, 400 U.S. 297, 302-303, 91 S.Ct. 402, 406, 27 L.Ed.2d 398 (1971):
Congressional concern over the involvement of third parties in labor disputes not their own prompted § 8(b)(4)(B). This concern was focused on . pressure brought to bear, not “upon the employer who alone is a party [to a dispute], but upon some third party who has no concern with it” with the objective of forcing the third party to bring pressure on the employer to agree to the union’s demands.
Section 8(b)(4)(B) is, however, the product of legislative compromise and also reflects a concern with protecting labor organizations’ right to exert legitimate pressure aimed at the employer with whom there is a primary . dispute, (footnotes omitted).
The line between legitimate “primary” activity directed against the offending employer and unlawful “secondary” activity directed against the neutral employer with whom the union has no dispute is often difficult to discern in a “common situs” case such as presented here. But, “however difficult the drawing of lines more nice than obvious, the statute compels the task.” Local 761, Int’l Union of Elec. Workers v. NLRB, 366 U.S. 667, 674, 81 S.Ct. 1285, 1290, 6 L.Ed.2d 592 (1960).
In Sailors’ Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547 (1950), the Board formulated certain standards for legitimate picketing at sites where employers other than primary employers are performing tasks. Those standards are: (1) that the picketing be limited to times when the situs of dispute was located on the secondary premises, (2) that the primary employer be engaged in his normal business at the situs, (3) that the picketing take place reasonably close to the situs, and (4) that the picketing clearly disclose that the dispute was only with the primary employer.
The Supreme Court in Electrical Workers in applying those standards stated that their observance would be “presumptive of valid primary activity” 366 U.S. at 677, 81 S.Ct. 1285, but then made clear that they should not be applied mechanically. Thus, if the union’s purpose in picketing were to coerce the secondary employer, and that purpose were communicated to the secondary, formal compliance with the standards will not immunize a union or its agents from an action under section 8(b)(4) (B). For, as the Board said ,in Millwrights Local 1102, 155 N.L.R.B. 1305, 1309 (1965), the “totality of a union’s conduct in a given situation may well disclose a real purpose to enmesh neutrals in a dispute, despite literal compliance with the Moore Dry Dock standards.” A number of courts have adopted this approach. See, e. g., IBEW Local 480 v. NLRB, 134 U.S.App.D.C. 178, 413 F.2d 1085 (1969); NLRB v. Northern California District Council of Hod Carriers, 389 F.2d 721 (9th Cir. 1968).
It has been argued that the instant case presents precisely that kind of situation. We agree. The Board adopted the trial examiner’s ultimate finding that the picketing was designed “to force Vail to cancel the Meyer contract, thereby forcing it to cease doing business with Meyer.” Substantial evidence supports that finding. We so conclude notwithstanding the fact that the declared purpose of the picketing was to force Meyer to meet the prevailing wage standards of the area and that the picketing formally met the Moore Dry Dock criteria. If that were its sole aim the picketing would have easily been sanctioned by the Board. See, e. g., Int’l Hod Carriers, Local 41, 133 N.L.R.B. 512 (1961); IBEW, 145 N.L.R.B. 1163 (1964); Plumbers Local 307, 146 N.L. R.B. 888 (1964).
In this case, however, regardless of the surface legitimacy of the picketing, respondents’ agents disclosed to Boyd that one if not the most important purpose of the picketing was to pressure Vail into cancelling its contract with Meyer. The effect of these disclosures on Boyd was to convert an ostensibly legal activity directed at the primary employer to an illegal activity directed at the secondary employer. Spitale, the Council’s president, called Boyd, saying that Meyer was “unfair” in that he failed to pay prevailing wages and then offered to provide Boyd with a list of “fair” plumbers. This statement is meaningless unless it was intended to persuade Vail to substitute a “fair” plumber for Meyer. The picketing started the next day; at the same time, Spitale followed up his initial call, telephoning Boyd to say that “the men were very angry” about Meyer’s continuance as subcontractor and that the Plumbers’ business agent, McCarthy, would send Boyd a list of “fair” plumbers. The following day McCarthy called Boyd and indicated that he had such a list. The conversation ended, however, when Boyd stated that some of the bids of the “fair” plumbers were higher than Meyer’s bid.
On a subsequent date a meeting was arranged between the union agents and Boyd. During the meeting, Hagberg, the business manager for the Electrical Workers asked Boyd if he would be willing to cancel the contract with Meyer and give the remaining work to a “fair” plumber. Boyd replied that this was not a “fair” question, that there must be some other alternative. Hagberg asked McCarthy if he knew of any other solution. McCarthy replied that he could think of none except to replace Meyer by a “fair” plumber.
When the foregoing circumstances are considered, there can be little doubt that the picketing was principally directed at effectuating Meyer’s removal from the job. The picketing continued, the employees of the other subcontractors honored the picket line, and eventually the object was accomplished. Vail cancelled Meyer’s contract and immediately the picket line was removed.
Respondents argue that the picketing is legal principally because it meets the standards outlined in Moore Dry Dock. They characterize the subsequent conversations with Boyd as “friendly conversations” initiated by the neutral employer which, as such, cannot transform a legal picketing into an illegal one. They suggest that the Board’s findings result from an impermissible bootstrap argument in which the Board is confusing the unintended, though well-nigh inevitable effects of the picketing, with its objects.
The vice of this analysis is that it overvalues compliance with Moore Dry Dock standards and substantially undervalues the importance of the surrounding circumstances. The effects of picketing can be channeled in many directions depending in part upon compliance at the site of the picketing with Moore Dry Dock and in part upon the activities of the union outside the immediate area. The conversations and the meetings between the union officials and Boyd constituted conduct as much as that which occurred on the picket line. The union’s conduct in this instance directly communicated to Boyd one of the purposes of picketing, namely, Meyer’s removal. As the General Counsel points out, the picketing coupled with the direct appeals to the neutral employer constitute the kind of “restraint” which the statute was designed to prevent.
In addition, as a matter of law, this combination of conduct constituted the inducement and encouragement of those employed by neutral subcontractors to “engage in a strike” the object of which was illegal.
The order of the Board will be enforced.
. The handbill distributed by the picketers said:
The peaceful patrolling is being done by Plumbers Local Union No. 307 of the AFL-CIO. As a union we are, of course, pro-union but this is not why we are picketing. True, we always like to see members of the union employed not only because they are our members, but also because we know that as the result of their intense training and experience and the completion of a five-year apprenticeship program these men are qualified to give the finest service and perform work with the expert craftsmanship which they have learned. But we have an additional interest in our area. We believe it is our obligation along with other residents of the area to maintain a certain standard of living. A standard of living comes from wages and conditions and we believe the wages and conditions which permit the maintenance of our standard of living and your standard, are those which prevail in the general area. Once these wages and conditions which prevail are reduced this means that the standard of living is reduced and it is not only reduced for the mechanic but it is reduced in the entire community as well because the merchant, the professional man and anyone whose business is dependent upon the prevailing wage of the mechanic is hurt when prevailing wages are not met. And, this is why we are patrolling. Meyer Plumbing, Inc. is not meeting prevailing wages and conditions and this, in our opinion, represents a threat to the entire community.
This notice is addressed only to the public. It is not addressed to any employers or to any employees. There is no intent or attempt to induce or encourage employees of any employer, or any person to engage in a refusal to -work, transport, or otherwise handle or work on any goods, materials and so on. No one is requested to cease performing any services. No one is requested to cease doing business with any one person. There is no intent to have any particular work assigned to anyone, nor is there an intent to seek recognition or start bargaining.
We believe that the people in this area should be familiar with what is going on and that is the sole purpose of patrolling. Plumbers Local Union No. 307 Affiliated with A.F.L.-O.I.O.
. Although the trial examiner concluded that employees of neutral subcontractors were induced to withhold their services, the Board rejected that finding. Furthermore, a stipulation signed by the parties in the district court ease reads in pertinent part: “The parties argee that the employees of Hobbs were already on the job site when picketing commenced, and that no representative of any of these Respondent Unions spoke with any employee, officer or' agent of Hobbs. Petitioner (Board) admits that when a labor organization engages in lawful primary picketing, the fact that employees of other (secondary) employers working at the job site (such as employees of Hobbs) cease working at the job site in response to picketing, it does not, in and of itself, render the picketing unlawful. In other words, under said circumstances, the ‘effect’ of the picketing is not material and not to be considered. . . . ”
Question: What is the specific issue in the case within the general category of "labor relations"?
A. union organizing
B. unfair labor practices
C. Fair Labor Standards Act issues
D. Occupational Safety and Health Act issues (including OSHA enforcement)
E. collective bargaining
F. conditions of employment
G. employment of aliens
H. which union has a right to represent workers
I. non civil rights grievances by worker against union (e.g., union did not adequately represent individual)
J. other labor relations
Answer:
|
songer_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.
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 number of judges who dissented from the majority?
Answer:
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